Ulysses GmbH & Co. KG v. UlyssesWindows.com, No. 2:2018cv00202 - Document 15 (W.D. Wash. 2019)
Court Description: ORDER denying Plaintiff's 12 Motion for Order Directing Foreign Service of Process under Fed. R. Civ. P. 4(f)(2)(C)(ii) and Fed. R. Civ. P. 4(f)(3). Signed by Judge Richard A. Jones.(MW)
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< 17 except personal delivery.” Rule 4(f) authorizes several methods for service of process 18 including, an “internationally agreed means of service,” or, if there is no “internationally 19 agreed means,” a method that is reasonably calculated to give notice. Fed. R. Civ. P. 20 4(f). 21 III. DISCUSSION 22 A. Service by private courier is prohibited by international agreement 23 Under Rule 4(f)(2)(C)(ii) a foreign defendant may be served “by a method that is 24 reasonably calculated to give notice[,] unless prohibited by the foreign country’s law, by 25 … using any form of mail that the clerk addresses and sends to the individual and that 26 requires a signed receipt.” Plaintiff asks the Court for leave to serve Defendant Del 27 Castillo by private courier in Brazil at the address associated with the “sunisoft” account 28 used to register the allegedly infringing domain. Dkt. #12 at 7. As noted by Plaintiff, Brazil and the United States are both signatories to the Inter- 1 2 American Convention on Letters Rogatory and Additional Protocol (“Inter-American 3 Convention”), which provides a mechanism for service of documents by a foreign central 4 authority. Id. Plaintiff argues that service by private courier to Defendant Del Castillo’s 5 address in Brazil does not conflict with the Inter-American Convention. Id. Effective 6 June 1, 2019, however, Brazil is also a signatory to the Hague Convention on the Service 7 Abroad of Judicial and Extrajudicial Documents (“Hague Convention”). See Hague 8 Convention, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638; Hague Conference on 9 Private International Law, Status Table, available at: 10 https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Jul. 11 15, 2019). 1 China and the United States are also signatories. See Melnichuk v. Fine Hau 12 Indus. Co., 2019 WL 2515181, at *1 (W.D. Wash. June 18, 2019) (internal citation 13 omitted). As a result, the Court must consider whether Plaintiff’s proposed method of 14 service violates the Hague Convention. 15 The Hague Convention requires signatory countries to establish a Central 16 Authority to receive requests for service of documents from other countries and to serve 17 those documents by methods compatible with the internal laws of the receiving state. See 18 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698–99 (1988). Service 19 through a country’s Central Authority is the principal means of service under the Hague 20 Convention. Id. Article X of the Convention preserves the ability of parties to effect 21 service through means other than a recipient-nation’s Central Authority as long as the 22 recipient-nation has not objected to the specific alternative means of service used. See 23 Hague Convention, art. 10, Feb. 10, 1969, 20 U.S.T. 361, T.I.A.S. No. 6638. In signing 24 25 26 27 28 1 The record before the Court does not include Brazil’s accession to the Hague Convention. Under Federal Rule of Evidence 201, however, the court may take judicial notice, sua sponte, of a “fact not subject to reasonable dispute,” including international treaties. See States v. Spector, 102 F. Supp. 75, 83 (S.D. Cal. 1951), rev'd on other grounds, 193 F.2d 1002 (9th Cir. 1952) (explaining that a court may take judicial notice of extradition treaties between the United States and other countries). 1 the Convention, however, Brazil expressly rejected service through means enumerated in 2 Article X, including service through postal channels and through its judicial officers. See 3 Declaration of Brazil in Connection with the Convention, Hague Convention, Nov. 15, 4 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, available at: https://www.hcch.net/en/ 5 instruments/conventions/status-table/notifications/?csid=1399&disp=resdn (last visited 6 Jul. 15, 2019). Accordingly, Plaintiff’s proposed method of serving Defendant Del 7 Castillo by private courier under Fed. R. Civ. P. 4(f)(2)(C)(ii) is prohibited by 8 international agreement. B. Plaintiff has not shown sufficient cause to merit alternative service 9 Under Fed.R.Civ.P. 4(f)(3), courts have discretion to allow service by alternative 10 11 means provided the court’s method of service comports with constitutional notions of due 12 process and is not prohibited by international agreement. Rio Properties, Inc. v. Rio Int’l 13 Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). A method of service comports with due 14 process if it is “reasonably calculated, under all the circumstances, to apprise interested 15 parties of the pendency of the action and afford them an opportunity to present their 16 objections.” Rio Properties, Inc., 284 F.3d at 1016, 1017 (quoting Mullane v. Cent. 17 Hanover Bank & Trust, 339 U.S. 306, 314 (1950)). Courts have authorized numerous 18 methods of alternative service under Rule 4(f)(3), including service by publication, mail, 19 and e-mail. Id. at 1016 (citations omitted). Parties are not required to attempt service by 20 other methods before petitioning the court for alternative service of process, instead it is 21 within the discretion of the district court to determine “when the particularities and 22 necessities of a given case require alternate service of process under rule 4(f)(3).” Id. at 23 1016. 24 Courts have considered a variety of factors when evaluating whether to grant relief 25 under Rule 4(f)(3) including whether the plaintiff identified a physical address for the 26 defendant, whether the defendant was evading service of process, and whether the 27 plaintiff had previously been in contact with the defendant. See e.g. Rio Properties, Inc. 28 v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (authorizing alternative service where 1 the plaintiff made multiple good faith yet unsuccessful attempts to serve the defendant 2 and the defendant was “striving to evade service of process”); Liberty Media Holdings, 3 LLC v. Vinigay.com, 2011 WL 810250 (D. Ariz. Mar. 3, 2011) (allowing alternative 4 service by e-mail where the plaintiff was unable to identify a physical address for the 5 defendant and the plaintiff had previously communicated with the defendant by e-mail); 6 Sun v. Kao, 170 F. Supp.3d 1321, 1327 (W.D. Wa. 2016) (permitting alternative service 7 via email where defendant was living in China at an unknown address and plaintiff 8 detailed threat of irreparable harm without expedited service). 9 The advisory committee notes to Rule 4 also provide several examples of situations 10 that might merit alternative means of service such as cases of urgency or the failure of a 11 country’s Central Authority to effect service within the six-month period provided by the 12 Hague Convention. See Fed. R. Civ. P. 4 advisory committee’s notes (1993 amendment, 13 subdivision (f)). The advisory notes caution courts to select a method of service that is 14 “consistent with due process and minimizes offense to foreign law.” Id. 15 Plaintiff argues that alternative service should be allowed because service under 16 the Inter-American Convention can be “problematic” and “fruitless.” Dkt. # 12 at 9. 17 This alone is insufficient to justify alternative service under Rule 4(f)(3). U.S. Aviation 18 Underwriters, Inc. v. Nabtesco Corp., 2007 WL 3012612, at *2 (W.D. Wash. Oct. 11, 19 2007) (denying alternative service where the sole basis for the request was to move the 20 case forward in an “expeditious and cost-effective manner”). Plaintiff has identified 21 physical addresses for each of the defendants and there is no evidence that the defendants 22 are attempting to avoid service of process, as in Rio Properties. 284 F.3d at 1016. While 23 a plaintiff need not have attempted every possible method of service of process before 24 petitioning the court for alternative relief, it must “demonstrate that the facts and 25 circumstances of the present case necessitate[ ] the district court's intervention.” Id. at 26 1016. The Court finds that, at present, Plaintiff has failed to do so. 27 28 IV. CONCLUSION For the foregoing reasons, Plaintiff’s Motion for an Order Directing Foreign Service 1 of Process under Rule 4(f)(2)(C)(ii) and Rule 4(f)(3) of the Federal Rules of Civil 2 Procedure (Dkt. # 12) is DENIED without prejudice. Plaintiff has 30 days from the date 3 of this Order to serve the Defendants in accordance with Rule 4(f) and the Hague 4 Convention. 5 6 DATED this the 29th of July, 2019. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A The Honorable Richard A. Jones United States District Judge
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