OEM Group Incorporated v. SEMSYSCO Incorporated et al

Filing 36

ORDER granting 26 Motion for alternative service. Service shall be completed on or before 4/11/2014. Signed by Judge David G Campbell on 3/24/2014.(DGC, nvo)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

OEM Group Incorporated,
Plaintiff,

10
11

SEMSYSCO Incorporated, et al.,

13

ORDER

v.

12

No. CV-13-01960-PHX-DGC

Defendants.

14
15
16

Plaintiff OEM Group, Inc. (“OEM”) has filed a motion for alternate service.

17

Doc. 26. The motion is fully briefed and no party has requested oral argument. The

18

Court will grant the motion.

19

OEM requests that the Court permit alternate service on Defendant SEMSYSCO,

20

Semiconductor Systems Corporation GmbH (“SEMSYSCO Austria”), pursuant to

21

Federal Rule of Civil Procedure 4(f)(3). SEMSYSCO Austria is a resident of Austria.

22

OEM argues that personal service on SEMSYSCO Austria is impractical and unduly

23

burdensome. Doc. 26 at 7. OEM asserts that there are two options for effectuating

24

personal service on SEMSYSCO Austria: (1) letters rogatory, which would cost a total of

25

$18,170 with an estimated turnaround time of four to five months; or (2) mail, which

26

would cost a total of $14,300 with a turnaround time of three to ten weeks and which is

27

unreliable. Id. at 7-8. In lieu of personal service on SEMSYSCO Austria abroad, OEM

28

requests permission to serve the Summons and Complaint as well as the other filings to

1

date at SEMSYSCO Austria’s domestic address as well as on Co-defendant

2

SEMSYSCO, Inc. and on non-party The Thompson Group, Inc. Doc. 26 at 1; Doc. 35

3

at 7.

4

Federal Rule of Civil Procedure 4(h)(2) authorizes service of process on a foreign

5

business entity in the manner prescribed by Rule 4(f). Rio Properties, Inc. v. Rio Int’l

6

Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). Service under Rule 4(f)(3) must be

7

(1) directed by the court and (2) not prohibited by international agreement. Fed. R. Civ.

8

P. 4(f)(3). “No other limitations are evident from the text [of Rule 4(f)(3)]. In fact, as

9

long as court-directed and not prohibited by an international agreement, service of

10

process under Rule 4(f)(3) may be accomplished in contravention of the laws of the

11

foreign country.”

12

Rule 4(f)(3) is neither a “last resort” nor “extraordinary relief,” but “is merely one means

13

among several which enables service of process on an international defendant.” Id.

Rio Properties, 284 F.3d at 1014.

Service of process under

14

To pass constitutional muster, a method of service approved by a district court

15

must be “reasonably calculated, under all the circumstances, to apprise interested parties

16

to the pendency of the action and afford them an opportunity to present their objections.”

17

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Applying this

18

construction of Rule 4(f)(3) and the standard articulated in Mullane, courts have

19

authorized a wide variety of alternative methods of service. See SEC v. Tome, 833 F.2d

20

1086, 1094 (2d Cir. 1987) (service of process by publication in the Int’l Herald Tribune);

21

Int'l Controls Corp. v. Vesco, 593 F.2d 166, 176–78 (2d Cir. 1979) (service by mail to

22

last known address); New Eng. Merchs. Nat'l Bank v. Iran Power Generation &

23

Transmission Co., 495 F.Supp. 73, 80 (S.D.N.Y. 1980) (service by telex for Iranian

24

defendants); Levin v. Ruby Trading Corp., 248 F.Supp. 537, 541–44 (S.D.N.Y. 1965)

25

(employing service by ordinary mail); Forum Fin. Group, 199 F.R.D. 22, 23–24 (D.Me.

26

2001) (service on defendant's attorney); In re Int'l Telemedia Assoc., 245 B.R. 713, 719–

27

20 (Bankr. N.D. Ga. 2000) (service via email).

28

OEM asserts that SEMSYSCO Austria is not incorporated in the United States and

-2-

1

does not have a statutory agent designated to receive process. Doc. 35 at 1. OEM

2

presents evidence, however, that The Thompson Group is the parent company of both

3

SEMSYSCO, Inc. and SEMSYSCO Austria. Doc. 26 at 5. In addition, SEMSYSCO

4

Austria and The Thompson Group share the same U.S. address at 1885 Whitefish Stage

5

Rd., Kalispell, MT 59901.

6

Co-defendant SEMSYSCO, Inc. does not dispute OEM’s factual assertions

7

alleging a close connection between SEMSYSCO Austria, SEMSYSCO, Inc., and The

8

Thompson Group.

9

inappropriate because OEM has failed to show that The Thompson Group or

10

SEMSYSCO, Inc. are the alter egos of SEMSYSCO Austria or that they otherwise

11

exercise control over SEMSYSCO Austria.

12

argument unpersuasive. Neither Rule 4(f)(3) nor Mullane require that alternate service

13

be made on a party that controls a defendant. Instead, OEM need only show that

14

alternate service on SEMSYSCO, Inc. or The Thompson Group is reasonably calculated

15

to apprise SEMSYSCO Austria of the pendency of the action and afford it an opportunity

16

to present its objections. SEMSYSCO, Inc. also appears to argue that OEM’s motion for

17

alternative service should be denied because OEM has delayed service of process on

18

SEMSYSCO Austria for nearly four months. Attempts at conventional service are not,

19

however, prerequisites for alternate service. Rio Properties, Inc., 284 F.3d at 1015.1

SEMSYCO, Inc. argues, however, that alternative service is

Doc. 31 at 2-3.

The Court finds this

20

The Court concludes that OEM has made the requisite showing under Rule 4(f)(3)

21

and Mullane to justify alternative service on SEMSYSCO, Inc. and The Thompson

22

Group. Service on SEMSYSCO Austria at its domestic address in addition to alternate

23

service on its parent and sibling companies in the United States satisfies Mullane. The

24

Court will also require OEM to notify SEMSYSCO Austria by email of the pendency of

25

this action, this order authorizing alternate service, and the time and method of alternate

26
27
28

1

Similarly, the Court is not persuaded by SEMSYSCO, Inc.’s argument that the
complaint and related documents must be translated under Austrian law. SEMSYSCO
Austria does business in the U.S. in English and has an office in Montana, as does The
Thompson Group and SEMSYSCO, Inc.
-3-

1
2
3
4

service on SEMSYSCO, Inc. and The Thompson Group.
IT IS ORDERED that Plaintiff’s motion for alternate service (Doc. 26) is
granted as set forth above. Service shall be completed on or before April 11, 2014.
Dated this 24th day of March, 2014.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-