UBS Financial Services Inc. v. Berger

Filing 21

Order by Magistrate Judge Laurel Beeler granting 14 Ex Parte Application.(lblc1S, COURT STAFF) (Filed on 1/17/2014)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
UBS FINANCIAL SERVICES INC., a
Delaware corporation,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Petitioner,
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v.

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ORDER PERMITTING SERVICE OF
PETITION AND MOTION VIA EMAIL

HENRIQUE BERGER, an individual,

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No. C 13-03770 LB

Respondent.
_____________________________________/

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Petitioner UBS Financial Services, Inc. originally filed this action as a petition and motion to

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confirm a FINRA arbitration award issued on April 19, 2013 against Respondent Henrique Berger, a

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former UBS employee. See Petition, ECF No. 1; FINRA Case No. 11-00694; Goldberg Decl. ¶ 13,

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ECF No. 14-1.1 UBS was unable to serve its Petition and Motion to Confirm upon Berger, so it

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withdrew its motion “to ensure that Respondent has adequate time to respond to the Motion.”

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Notice of Withdrawal, ECF No. 9 at 2. On December 23, 2013, UBS filed the pending ex parte

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application for an order permitting it to serve Berger by e-mail or, in the alternative, by publication.

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ECF No. 14.

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In its application and the supporting declaration, UBS shows that it has attempted to serve
Berger personally and by certified mail at two different addresses. See Goldberg Decl. ¶¶ 4-10, ECF

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page number at the top of the document.
C 13-03770
ORDER

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No. 14-1. UBS sent a message to Berger at the e-mail address he used to correspond during the

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arbitration, asking him to provide his current address or waive personal service. Id. ¶ 11. Berger did

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not reply. Id. ¶ 12. UBS unsuccessfully tried to locate Berger by searching public record indexes.

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Id. ¶ 13. UBS located Berger’s LinkedIn profile, which shows that he currently resides in Sao

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Paolo, Brazil. Id. ¶ 14, Ex. D (printout of Berger’s LinkedIn profile). Finally, the court held a

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hearing on UBS’s application on January 16, 2014. See Docket. At the hearing, UBS’s counsel

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stated on the record that UBS knew of no e-mail addresses for Berger other than the gmail

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[e-mail].

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In its ex parte application, UBS asks the court to permit it to serve Berger in Brazil by e-mail.
Federal Rule of Civil Procedure 4(f) authorizes service of process on an individual in a foreign

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country in the following ways:

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For the Northern District of California

UNITED STATES DISTRICT COURT

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(1) 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 Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but
does not specify other means, by a method that is reasonably calculated to give notice:

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(A) as prescribed by the foreign country's law for service in that country in an action in
its courts of general jurisdiction;

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(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

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(C) unless prohibited by the foreign country's law, by:

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(i) delivering a copy of the summons and of the complaint to the individual
personally; or

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(ii) using any form of mail that the clerk addresses and sends to the individual and
that requires a signed receipt; or

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(3) by other means not prohibited by international agreement, as the court orders.

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“As obvious from its plain language, service under Rule 4(f)(3) must be (1) directed by the court;

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and (2) not prohibited by international agreement. No other limitations are evident from the text.”

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Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002) (affirming propriety of

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service of process by e-mail). While Rule 4(f)(3) gives the court discretion to “craft alternate means

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of service,” such means still must comport with constitutional notions of due process. Id. at 1016.

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“To meet this requirement, the method of service crafted by the district court must be ‘reasonably

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ORDER

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calculated under all the circumstances, to apprise interested parties of the pendency of the action and

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afford them an opportunity to present their objections.’” Id. at 1016-17 (quoting Mullane v. Cent.

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Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (Jackson, J.)).

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Here, UBS proposes to serve Berger through the e-mail address [e-mail], which

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he used to correspond during the underlying arbitration action. The court is not aware of any

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international agreement that would prohibit UBS from serving Berger via e-mail. At the January 16,

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2014 hearing in this matter, UBS’s counsel stated on the record that it was not aware of any such

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prohibition, either. The court therefore concludes that the service through e-mail is an appropriate

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means of serving Berger.

“Send Henrique InMail,” which the court presumes to be a way to send an e-mail through LinkedIn.

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For the Northern District of California

The court also observes that the screenshot of Berger’s LinkedIn profile provides an option to

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UNITED STATES DISTRICT COURT

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The best available means of reaching Berger, therefore, is to serve process via e-mail at his gmail

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address and through LinkedIn. Accordingly, the court orders UBS to serve process on Berger at the

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e-mail address, [e-mail], and via the InMail link on Berger’s LinkedIn profile.2 UBS

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also must attempt to serve Berger at any other e-mail addresses it has for Berger.

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This disposes of ECF No. 14.

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IT IS SO ORDERED.

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Dated: January 17, 2014
_______________________________
LAUREL BEELER
United States Magistrate Judge

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If UBS is unable to send attachments through InMail, then it must notify Berger through
InMail that it has served him with process at the [e-mail] e-mail address and of the
contents of this order.
C 13-03770
ORDER

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