Slay v. IB Travelin, Inc., et al, No. 2:2018cv02728 - Document 17 (W.D. Tenn. 2019)
Court Description: ORDER denying 13 Motion. Signed by Judge Samuel H. Mays, Jr. on 2/12/2019.
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Slay v. IB Travelin, Inc., et al Doc. 17 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) BARBARA ANN HUNT SLAY, individually and as Personal Representative for the Estate of WILLIAM THOMAS HUNT, deceased, and on behalf of the wrongful death beneficiaries of WILLIAM THOMNAS HUNT, Plaintiff, v. IB TRAVELIN, INC., formerly doing business as IBEROAMERICANA TRAVEL SYSTEM, INC., and DOMIRUTH TRAVEL SERVICES, SAC, Defendants. No. 2:18-cv-02728 ORDER Before November the 11, Court 2018 Ex is Plaintiff Parte Motion Barbara to Ann Hunt Authorize Slay’s Alternative Service of Process on Defendant Domiruth Travel Services, SAC (“Domiruth”) 4(f)(3). Pursuant (ECF No. to 13.) Federal Rule For following the of Civil Procedure reasons, Slay’s Motion is DENIED. Dockets.Justia.com I. Background Former Shelby County, Tennessee resident Hunt died while vacationing in Peru in 2013. 37.) 1 William Thomas (ECF No. 13-1 at This tragedy has led to two cases before the Court. The first case was filed in 2015. sister, sued five companies associated (Id.) with (Case No. 2:15-cv-02003, ECF No. 1-1 at 7.) Slay, Hunt’s Hunt’s vacation. One was Domiruth, a foreign company with its principal place of business in Peru. (Id.) Bringing Domiruth before the Court during the first case proved difficult. The Clerk of Court issued a summons to Domiruth on March 20, 2015. (Case No. 2:15-cv-02003, ECF No. 30.) On April 22, 2015, a specialist in the service of civil process in foreign countries sent complaint to the summons, Domiruth in complaint, accordance with and the first amended Inter-American Convention on Letters Rogatory and the Additional Protocol to the Inter-American Convention on Letters Rogatory (collectively the “IACAP”), to both of which the United States and Peru are signatories. (Id., ECF No 46.) Peruvian lawyers representing Domiruth sent a submission to the Court in September 2015 that was not in the proper form of an answer or response to Slay’s amended complaint. the Court held a (Id., ECF No. 58.) status conference 1 at On November 30, 2015, which Slay’s attorney Unless otherwise noted, all pin cites for record citations are to the “PageID” page number. 2 represented that he had made numerous unsuccessful attempts to contact Domiruth’s Peruvian counsel. (Id., ECF No. 64.) a year later, Slay requested entry of default. 78.) About (Id., ECF No. The Clerk of Court entered default against Domiruth on November 9, 2016. (Id., ECF No. 80.) About seven months after entry of default, Domiruth filed a motion to set aside default through Memphis-based attorney James Bennett Fox, accompanied Jr. by (Id., a financial officer. ECF declaration No. 91.) signed (Id., ECF No. 91-2.) That by motion Domiruth’s was chief Fox made three filings on behalf of Domiruth over a twenty-day period in June 2017: the motion to set aside default; a motion for leave to file a reply to Slay’s response to Domiruth’s motion to set aside default; and a reply to Slay’s response to Domiruth’s motion to set aside default. (Id., ECF Nos. 91, 93, 95.) Domiruth’s motion was never resolved. Slay (Id., voluntarily ECF No. dismissed 101.) The the case Court On October 31, 2017, against ordered all defendants. dismissal prejudice and entered judgment the same day. without (Id., ECF Nos. 102, 103.) A second case is now before the Court. On October 19, 2018, Slay filed a new Complaint against two of the defendants in the first case, one of which is Domiruth. (ECF No. 1.) In the instant Motion, Slay seeks authorization to serve Domiruth 3 by alternative Procedure process 4(h)(2) and pursuant 4(f)(3). to (ECF Federal No. Rules 13-1 at of Civil 39.) In particular, Slay asks for authorization to serve Domiruth by any or all of the following means: (1) first class mail and email to James Bennett Fox, Jr.; (2) Federal Express on Domiruth’s chief financial officer at Domiruth’s last known corporate address; and (3) personal delivery and Federal Express sent to Domiruth’s official office address as listed in the Register of Legal Entities of the Registry of Lima (“SUNARP”) and in the National Superintendence of Tax Administration (“SUNAT”). II. (Id. at 41.) Standard of Review Under Rule 4(h), “[u]nless federal law provides otherwise or the defendant’s waiver [of service] has been filed,” service abroad on a foreign company must be effected “in any manner prescribed by Rule 4(f) for serving personal delivery under (f)(2)(C)(i).” an individual, except Fed. R. Civ. P. 4(h)(2). Because Domiruth has not filed a waiver of service, and because federal law does not “provide [] otherwise,” Rule 4(f) controls. Rule 4(f) addresses service of individuals “not within any judicial subparts. district of the United States.” It contains three Rule 4(f)(1) provides for service of process “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial 4 Documents.” Rule 4(f)(2) provides that, “if there is no internationally agreed means, or if an international agreement allows but does not specify other means,” process may be served “by a method that is reasonably calculated to give notice”: (A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction (B) as the foreign authority directs in response to a letter rogatory or letter of request; or (C) unless prohibited by the foreign country’s law, by: . . . (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt . . . . Rule 4(f)(3) allows service “by other means not prohibited by international agreement, as the court orders.” The Sixth Circuit has not addressed whether there is a hierarchy or preference among Rule 4(f)’s methods of service. See Phoenix Process Equip. Co. v. Capital Equip. Corp., 250 F. Supp. 3d 296, 306 (W.D. Ky. 2017). and Ninth hierarchy Software Circuits or have preference. House, 626 F.3d concluded that See Nuance 1222, 1239 (Fed. Trading The Federal there Comms., & is Inc. Cir. no such v. Abbyy 2010); Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014-15 (9th Cir. 2002). share this view. Some district courts in the Sixth Circuit See Phoenix Process Equip. Co., 250 F. Supp. 5 3d at 306 (“By all indications, court-directed service under Rule 4(f)(3) is as favored as service available under Rule 4(f)(1) or 4(f)(2).” (quoting Rio, 284 F.3d at 1015)); Lexmark Int’l, Inc. v. Ink Techs. Printer Supplies, LLC, 295 F.R.D. 259, 260 (S.D. Ohio 2013) (finding that plaintiff was not required to first exhaust Rule 4(f)(1) and 4(f)(2) methods because Rule 4(f)(3) is “neither a last resort nor extraordinary relief [but rather] merely one means among several” (quoting Rio, 284 F.3d at 1015) (internal quotation marks omitted)). At least one district court in the Sixth Circuit disagrees. See C & F Sys., LLC v. Limpimax, S.A., No. 1:09-cv-858, 2010 WL 65200, at *2 (W.D. Mich. Jan. 6, 2010) (requiring plaintiff, in light of principles of comity, to proceed first under 4(f)(1) or 4(f)(2)); see also Marcantonio v. Primorsk Shipping Corp., 206 F. Supp. 2d 54, 58 (D. Mass. 2002) (finding that Rule 4(f)(3) “should be seen as a final effort to make service when other means have failed”). Absent guidance from the Sixth Circuit, Nuance and Rio are persuasive. Rule 4(f) does not establish a preference for any method of service. within suggest Rule that 4(f), However, although there may be no hierarchy congressional there are some intent and constraints judicial on Rule practice 4(f)(3). Because the breadth of Rule 4(f)(3) could allow litigants to bypass 4(f)(1) and 4(f)(2) routinely, Congress trusted courts 6 not to authorize alternative service of process under 4(f)(3) so regularly that regard for international comity would become a nullity. The advisory committee notes to Rule 4 emphasize that alternative service under 4(f)(3) is justified only when there is a good reason for deviating from the usual methods of international service of process, such as cases of urgency or when following internationally would be futile. 1993 note prescribed methods of service See Fed. R. Civ. P. 4 advisory committee’s (“[C]ircumstances that might justify the use of additional methods [of service under Rule 4(f)(3)] include the failure of the foreign country's Central Authority to effect service within the six-month period provided by the Convention, or the refusal of the Central Authority to serve a complaint . . . .”). Many courts follow the spirit of the advisory committee’s admonishment authorization defendant by requiring to have show “that already the party reasonable been made, seeking efforts and to that 4(f)(3) serve the the Court’s intervention will avoid further burdensome or futile attempts at service.” United States v. Alphatec Spine, Inc., No. 1:13-cv- 586, 2016 WL 1182260, at *2 (S.D. Ohio Mar. 28, 2016); see also Rio, 284 F.3d at 1016; FMAC Loan F.R.D. 531, 534 (E.D. Va. 2005). 7 Receivables v. Dagra, 228 A final limit on Rule 4(f)(3) is the Due Process Clause of the Fifth process Amendment. must be Any authorized “reasonably alternative calculated, service of all the under circumstances, to apprise interested parties of the pendency of the action and objections.” afford them an opportunity to present their Ming Kuo Yang v. City of Wyoming, Mich., 793 F.3d 599, 602 (6th Cir. 2015) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). III. Analysis None of the alternative methods of process Slay requests is prohibited by an international agreement with Peru. The United States SA and Peru are signatories to the IACAP. Luxury Expeditions, LLC v. Latin Am. for Less, LLC, No. C 14-04085 WHA, 2015 WL 4941792 at *1 (N.D. Cal. Aug. 19, 2015). international agreement governs the service of “No other process for litigation in the United States on parties located in Peru.” Id. The IACAP does not preclude service of process by other means. See id.; Pizzabiocche v. Vinelli, 772 F. Supp. 1245, 1249 (M.D. Fla. 1991); see also Kreimerman v. Cada Veerkamp, S.A. de C.V., 22 F.3d 634, 644 (5th Cir. 1994). Rule 4(f)(3) permits Slay’s requested alternative methods of process. Slay has not shown, however, “that reasonable efforts to serve [Domiruth] have already been made, and that the Court’s intervention will avoid further burdensome or futile attempts at 8 service.” Alphatec, authorization means under “because of 2016 4(f)(3) the WL 1182260, to cost serve and at *2. Domiruth extensive Slay by seeks alternative amount of time necessary to serve process pursuant to the [IACAP] procedure.” (ECF No. 13-1 at 41.) Slay makes no representation that she has attempted to seek a waiver of service from Domiruth or that she has asked J. Bennet Fox, Jr. to accept service on behalf of Domiruth. Serving Domiruth in the first case pursuant to the IACAP resulted in some inefficiency; Domiruth did not receive sufficient representation before the Court until slightly more than two years after the Clerk of Court issued the summons. Having gone through that experience, and having previously retained a Memphis attorney, Domiruth is likely to represent its interests adequately now. Mailing a waiver request to Domiruth and/or communicating with Fox would help to determine whether alternative service of process under Rule 4(f)(3) is warranted. See In re LDK Solar Sec. Litig., No. C 07-05182 WHA, 2008 WL 2415186, at *3 (N.D. Cal. June 12, 2008) (authorizing 4(f)(3) service in part because local defense counsel had refused to accept service on behalf of the foreign Int'l Co., defendants); 379 F. Igloo Supp. 2d Prods. 18, Corp. 19-20 v. Thai (D. Mass. Welltex 2005) (authorizing 4(f)(3) service when plaintiff received a return receipt after mailing the summons and complaint to defendant). 9 Requesting a waiver and communicating with Fox would also help to determine whether the Due Process Clause permits Slay’s requested methods of service. On the current record, it does not. Although service on a foreign defendant’s United States counsel has been found to satisfy the Due Process Clause, that has generally been because there is evidence that the United States counsel and the contact with each other. upon [United appropriate foreign he maintain regular See Rio, 284 F.3d at 1017 (“Service States-based because defendant had attorney] been Carpenter specifically [defendant] regarding this lawsuit. was . . . consulted by He knew of [defendant’s] legal positions, and it seems clear that he was in contact with [defendant] . . . .”); Harper v. W.W. Grainger, Inc., No. 3:12CV-97, 2013 WL 2470751, at *4 (W.D. Ky. June 7, 2013) (holding that service counsel was counsel is on foreign defendant constitutional clearly in through because contact with its United “[defendant’s] [defendant’s] States Kentucky General Counsel”). There is no evidence before the Court that Fox is now in contact with Domiruth. Fox’s only known involvement with Domiruth was about a year and a half ago when he made three filings in this Court over a twenty-day period. That, without more, is not enough to satisfy the Court that service on Fox 10 would be “reasonably calculated . . . to apprise [Domiruth] of the pendency of the action . . . .” Ming Kuo Yang, 793 F.3d at 602. Like Slay’s first requested method of alternative service, her second is sometimes constitutionally permissible, but not on the current record. Using Federal Express to deliver service to a foreign defendant’s last known address satisfies due process when there is some evidence that delivery to that address would apprise the defendant of service, such as the fact that the defendant has received mail at that address during the instant litigation. See United States v. Pomerantz, No. 16-0689JLR, 2017 WL 1037552, at *4 (W.D. Wash. Mar. 17, 2017) (finding that service of process to a listed address was likely to provide notice because “[defendant] ha[d] acknowledged that he received at least one of the address] . . . .”); waiver packages mailed to [the listed Jenkins v. Pooke, No. C 07-03112 JSW, 2009 WL 412987, at *2 (N.D. Cal. Feb. 17, 2009) (finding that mailing service to defendant’s listed address was likely to provide notice because plaintiffs had previously successfully delivered service documents via Federal Express to the address). Similar evidence is not before the Court. Slay contends that service on Domiruth’s last known address would satisfy due process Domiruth because prepared “the for address was Hunt . . . 11 listed and is on also the the itinerary address list[ed] on Domiruth’s website.” (ECF No. 13-1 at 43.) Slay cites no case where similar evidence was sufficient to satisfy due process. The cases she does cite are not persuasive. Although they permitted 4(f)(3) service by Federal Express at foreign corporate addresses or discussed previous authorizations, all fail to address due process. 4(f)(3) See TracFone Wireless, Inc. v. Washington, 290 F.R.D. 686, 688 (M.D. Fla. 2013); Jon D. Derrevere, P.A. v. Mirabella Found., No. 6:10-cv925, 2011 Mainstream WL 1983552, Media, EC at *3 v. Riven, (M.D. No. Fla. C Apr. 08-3623 26, PJH, 2011); 2009 WL 2157641, at *3 (N.D. Cal. July 17, 2009); Alu, Inc. v. Kupo Co., No. 6:06-CV-327ORL28DAB, 2007 WL 177836, at *4-5 (M.D. Fla. Jan. 19, 2007). Although there is some evidence that the address at which Slay seeks to serve Domiruth would provide Domiruth with notice, it is also possible that Domiruth is not aware of mail sent to that address. Without evidence that Domiruth is currently notified of mail sent there, authorizing service by Federal Express to that address would not afford Domiruth sufficient notice. Slay provides no authority supporting the constitutionality of her third proposed method of service: “hand delivery and Federal Express delivered to Domiruth at its official address as listed in the Registry of Legal Entities of the Registry of Lima as well as the National Superintendence of Tax Administration 12 (SUNAT).” (ECF No. 13-1 at 43.) Slay contends that “this method of service of process has been utilized successfully for lawsuits originating in the United States in over 30 state and federal courts.” citation. (Id. (Id.) As at with 44.) She Slay’s provides second no supporting proposed method of service, nothing before the Court shows that Domiruth would be apprised of process Registry or SUNAT. method of serving sent to the address(es) listed the On the current record, the third proposed process would not satisfy the Due Clause. IV. in Conclusion For the foregoing reasons, Slay’s Motion is DENIED. So ordered this 12th day of February, 2019. /s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 13 Process
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