By: Tom On: December 18, 2019 In: International Service of Process Comments: 0
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The need to effect international service by alternative means most frequently arises if the defendant lives in a country that is not a signatory to the Hague Service Convention or if an address for service of process is not found after preforming due diligence. Alternative channels of service available through the HSC include service by diplomat, service by mail/email, and service by judicial officer.

In the case of Reflex Media, Inc. v. Wallace,[1] the plaintiff sought to effect service by courier or email upon one of the defendants in Bangladesh (a non-Hague member). In granting the plaintiff’s motion, the court systematically reviewed the three conditions that must be met for service by alternative means to be deemed proper.

Proving that Alternative Service is Proper

Federal Rule of Civil Procedure Rule 4(f) governs service on an individual in a foreign country.

Service under Rule 4(f)(3), as requested by the Plaintiff, is not a “last resort” or “extraordinary relief.” “It is merely one means among several which enables service of process on an international defendant.” It is within the Court’s discretion to determine “when the particularities and necessities of a given case require alternate service of process under Rule 4(f)(3).” Rule 4(f)(3) permits service outside a judicial district of the United States “by other means not prohibited by international agreement, as the court orders.” Additionally, to establish that a particular method of service is appropriate, a plaintiff must show that service is “reasonably calculated, under all the circumstances, to apprise the interested parties of the action and afford them an opportunity to present their objections.” [2]

Accordingly, service is proper under Rule 4(f)(3) so long as it is (1) ordered by the court; (2) not prohibited by international agreement; and (3) reasonably calculated, under the circumstances, to apprise the party of the action.

1. Service is Ordered by the Court

In this case, the first element of Rule 4(f)(3) is met because the court is ordering alternative service on the defendant.

2. Service is Not Prohibited by International Agreement

The second element of Rule 4(f)(3), the method of service requested is not prohibited by international agreement, is also met.

There is no international agreement between Bangladesh (where [the defendant] resides) and the United States and thus no international agreement prohibiting service via email and international courier.[3]

3. Service is Reasonably Calculated

The third element of Rule 4(f)(3), requiring that service be reasonably calculated to apprise the defendant of the litigation,

will also be met by serving [the defendant]…  As discussed above, Plaintiff asserts that it hired a local process server who spoke with [the defendant] and was told to serve his partner, Md. Rahul Amin, at this address; the local process server did so and informally served Md. Rahul Amin with Plaintiff’s initial complaint. While [a second defendant in this case] may not have been able to locate the Target Physical Address on Google Maps (or the address may not have shown an office building), [the second defendant] has not demonstrated that Google Maps accurately shows the translated Target Physical Address as it exists today. Further, because Plaintiff’s counsel are officers of the court and there is no evidence to suggest that their statements about hiring a local process server are inaccurate, the court accepts these statements as true. Accordingly, the court is satisfied that serving [the defendant] or his partner, Md. Rahul Amin, at the Target Physical Address by international courier is reasonably calculated to apprise Ali of the pendency of this action.[4]

Service via Email

The court then examined service via email to determine if this form of alternative service was likewise reasonably calculated.

Whether service via email is also reasonably calculated to apprise [the defendant] of the pendency of this action is a much closer call. Web Presence accurately points out that there is no evidence that Plaintiff is still using these email addresses or ever personally used the business email address in the past. However, because the court finds that service at the Target Physical address is reasonably calculated to apprise [the defendant] of this action, the court need not determine whether this is also true for service via email. Nonetheless, the court will order Plaintiff to serve [the defendant] at both email addresses to provide additional chances for [the defendant] to receive notice. Similarly, the court will order Plaintiff to serve [the defendant] through his and his company’s Facebook accounts, as Plaintiff offered in its reply brief.

The Defendant’s Arguments

The court then dismissed the defendant’s arguments; including:

  • that [the] Plaintiff’s motion should be denied because Plaintiff was not diligent in attempting to serve [the defendant]. However, diligent attempts at service in another manner are not a prerequisite to a court permitting alternative service under Rule 4(f)(3).[5]
  • that allowing service on [the defendant] now will delay litigation and this delay will prejudice Web Presence. However, [the second defendant] does not cite any authority for the proposition that this court can or should consider prejudice to another defendant when deciding whether to allow service by alternative means.[6]

How LLS Can Help

When service by alternative methods is attempted, it is vital that you work with professionals well-versed in international service of process in order to ensure the best possible outcome. At Legal Language, we can advice you on the proper means of alternative service and help you through the procedure when applicable. With more than 35 years of experience, we are the premier source of international litigation support.

Contact LLS today to learn more about how we can assist you.

Call 1-800-755-5775 or simply fill out our free quote form.

[1] Case No. 2:18-cv-02423-RFB-BNW, Dist. Court, D. Nevada 2019.
[2] Citations omitted.
[3] Id.
[4] Citation and footnote omitted.
[5] Emphasis added; citations omitted.
[6] Id.

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