NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-1553

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OSCAR RIVAS, AS ADMINISTRATOR OF THE

ESTATE OF LESTER ESTURADO RIVAS RUANO, DECEASED,

Appellant

v.

PROSPERO EQUIPMENT CORPORATION;

PROSPERO WINERY, INC.; PROSPERO’S WINE MAKING SHOP, INC.

____________

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D.C. No. 2-17-cv-03028)

District Judge: Honorable Joel H. Slomsky

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Submitted under Third Circuit L.A.R. 34.1(a)

September 13, 2019

Before: HARDIMAN, GREENAWAY, JR., and BIBAS, Circuit Judges.

(Filed: September 18, 2019)

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OPINION*

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 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

HARDIMAN, Circuit Judge.

This appeal involves a dispute about service of legal process. Plaintiff-Appellant 

Oscar Rivas, in his capacity as administrator of the estate of Lester Esturado Rivas 

Ruano, filed a praecipe to issue writ of summons in Pennsylvania state court in 2014, but 

didn’t file a complaint until 2017. Soon after the complaint was filed, DefendantsAppellees Prospero Equipment Corporation, Prospero Winery, Inc., and Prospero’s Wine 

Making Shop, Inc. (collectively, Prospero) removed the case to federal court and moved 

to dismiss for inadequate service of the writ of summons. 

In the course of a hearing on the motion to dismiss, the District Court ordered 

discovery on the service issue but did not set a deadline for submissions after discovery. 

App. 59 (“I’ll enter an order that fact discovery on the [service] issue . . . should be as . . . 

permissible until whatever that Friday is, the last Friday in January.”); see also Rivas Br. 

15 (conceding the discovery deadline). Though the District Judge did not enter a written 

order, his order on the record makes two things clear. First, discovery had to be 

completed by the last Friday in January 2018. And second, the District Court set no 

deadline for the parties to file their submissions. A month after discovery ended and 

before any submissions were filed, the District Court granted the motion to dismiss. We 

will now vacate and remand for the District Court to receive those submissions.1

 

1 The District Court had diversity jurisdiction under 28 U.S.C. §§ 1332(a)(1) and 

1441. We have jurisdiction under 28 U.S.C. § 1291.
3

We begin by noting, as Rivas’s counsel concedes, this case became a “procedural 

mess.” App. 77. In both state and federal court, before and after this appeal was taken, 

many opportunities for Rivas to effectuate or demonstrate effective service came and 

went. We therefore share the District Court’s “concern[]” over the case’s handling. App. 

67. Nevertheless, Rivas deserves the opportunity to present the discovery results to the 

Court that ordered them.

The rub of this appeal lies in that November 2017 hearing transcript on Prospero’s 

motion to dismiss. Although both parties completed discovery in time, neither submitted 

any findings before the District Court ruled on the motion to dismiss. Instead, Prospero 

pivoted away from the service of process argument and moved alternatively for judgment 

non pros based on the inactivity in state court from 2014 to 2017 (without reasserting the 

initial motion to dismiss). Rivas responded to that motion without addressing the motion 

to dismiss or the service issue. Three weeks after that response, assuming—with some 

justification—that the parties had nothing further to offer on the service issue, the Court 

granted the motion to dismiss. It explained why Rivas’s only evidence before the Court

(that Prospero’s insurer had a copy of the writ of summons before the deadline for service 

had passed) did not satisfy his burden of proof for showing service was sufficient. App. 

63–67; see Grand Entm’t Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 

1993). But the Court also mistakenly characterized the question of direct service on 

Prospero as “undisputed.” App. 65. Rivas did, in fact, dispute that point. See Pl.’s Resp. 
4

in Opp’n to Defs.’ Mot. to Dismiss 2–5, ECF No. 7 (arguing “the Writ of Summons was 

filed and served in a timely manner”).

Although the District Court has “broad discretion” when it comes to Rule 12(b)(5) 

motions, Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992), granting Prospero’s 

motion and dismissing the case without affording Rivas the benefit of explaining the 

results of the court-ordered discovery constituted an abuse of discretion. That ruling 

effectively faulted Rivas for blowing a nonexistent deadline. The Court stated that 

discovery would be “permissible until . . . the last Friday in January,” App. 59, without

imposing any deadline for submissions thereafter. So Rivas’s counsel’s inaction did not

warrant putting his client out of court. This is true even though counsel could have (and 

should have) brought this issue to the District Court on a motion for reconsideration 

instead of filing this appeal. 

After taking this appeal (and after the time to file a motion to reconsider had 

lapsed) Rivas moved the District Court to reopen and supplement the record,

2 finally 

putting forward the evidence from discovery that tended to show at least electronic 

delivery of the writ of summons in 2014. The District Court should have the benefit of 

that evidence (and the parties’ positions on it) when deciding whether Rivas adequately 

served Prospero lo those many years ago.

 

2 The District Court’s opinion and order denying that motion are not before us, but 

we may take judicial notice of such developments after appeal is taken. See Samuel v. 

Univ. of Pittsburgh, 506 F.2d 355, 360 n.12 (3d Cir. 1974).
5

* * *

For the reasons stated, we will vacate and remand for further proceedings 

consistent with this opinion.3

 3 The District Court technically granted Prospero’s non pros motion as well, but its 

explanatory footnote said nothing about it. Its silence on this point precludes this from 

serving as an alternative basis to affirm the District Court’s judgment. See generally Poulis 

v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984) (requiring application of several 

factors to evaluate the effect of a party’s failure to prosecute).