## Facts

- Paul Kolker bought Lot 19 in the Surfside community at Palmas del Mar, Puerto Rico, around 1985, relying on restrictive covenants preserving an adjacent green area.
- Kolker did not build on the lot after his wife’s illness and death in 1992 but continued to visit the property periodically.
- Kolker observed that neighbors Charles and Barbara Hurwitz allegedly used part of the restricted green area by cementing it to build a pool and gazebo and placing a generator and garbage receptacle near Kolker’s property.
- In 2007, as Kolker revived building plans, Hurwitz sought Kolker’s permission to add additional structures in the green area; Kolker refused based on the restrictive covenants.
- Kolker sued on September 4, 2009, seeking declaratory and injunctive relief and damages for alleged covenant and contract violations against the Hurwitzes and various developer/realty-related defendants.
- Kolker attempted to serve the Hurwitzes by leaving the summons and complaint with a security guard at the entrance to their apartment complex.
- Kolker also attempted service by publication but did not produce proof that an edict was published or that the summons and complaint were mailed by certified mail to the Hurwitzes.

## Issues

1. Whether leaving the summons and complaint with a security guard at the entrance to the defendants’ apartment complex, and later attempting publication without proof of required steps, constituted valid service of process sufficient for personal jurisdiction over Charles and Barbara Hurwitz.
2. Whether, at an early stage of the case, the plaintiff should be granted leave to amend the complaint, and what effect amendment would have on pending motions to dismiss and related requests.

## Decision

- The court granted the Hurwitzes’ motion to dismiss for insufficient service of process and dismissed them from the action.
- The court granted the plaintiff leave to amend the complaint within a set deadline and directed that the amended pleading omit the dismissed Hurwitz defendants.
- The court treated the remaining defendants’ motion to dismiss as moot in light of the permitted amendment.
- The court treated the plaintiff’s motion to strike a request for sanctions as moot.
- The court denied the plaintiff’s motion tendering a specific “second amended complaint,” while still permitting amendment on the court’s terms.

## Legal Principles

- A plaintiff bears the burden to show valid service of process; defective service prevents the court from exercising personal jurisdiction over the unserved defendants.
- Leaving process with a person who is neither the defendant nor an authorized agent at the defendant’s dwelling or usual place of abode does not satisfy service requirements.
- Service by publication requires strict compliance with procedural prerequisites, including proof of publication and required mailing (such as certified mailing to the last known address when mandated).
- Under Federal Rule of Civil Procedure 15(a), leave to amend should be freely given when justice so requires, particularly early in litigation and where defects may be cured without undue prejudice.
- When amendment is allowed, motions directed at a superseded complaint may be denied as moot.

## Conclusion

The court dismissed the Hurwitz defendants because the plaintiff failed to effect service under applicable rules, then allowed the plaintiff to replead against the remaining defendants under Rule 15’s liberal amendment standard, rendering other pending motions directed at the prior complaint moot.


Kolker v. Hurwitz, 269 F.R.D. 119 (D.P.R. 2010)