Walsh v. St. Denis

Filing 34

RULING granting 28 MOTION for alternate service pursuant to Rule 4(f)(3) and additional time pursuant to Rule 4(m). Signed by Judge Sarah A. L. Merriam on 3/2/2017. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
KENNETH G. WALSH
:
:
v.
:
:
THOMAS ST. DENIS
:
:
------------------------------x

Civ. No. 3:16CV00945(AWT)

March 2, 2017

RULING ON PLAINTIFF’S MOTION FOR ALTERNATE SERVICE [Doc. #28]
Pending before the Court is the motion of plaintiff Kenneth
G. Walsh (“plaintiff”) for permission to serve defendant Thomas
St. Denis (“defendant”) by alternative means pursuant to Federal
Rule of Civil Procedure 4(f)(3). [Doc. #28]. Plaintiff also
requests, if necessary, additional time in which to serve
defendant under Federal Rule of Civil Procedure 4(m). See id.
(hereinafter the “Motion for Alternate Service”). On February
14, 2017, Judge Alvin W. Thompson referred this motion to the
undersigned. [Doc. #29]. For the reasons articulated below, the
Court GRANTS plaintiff’s Motion for Alternate Service [Doc.
#28].
1.

Background
The Court presumes familiarity with the factual background

of this mater, but briefly addresses the procedural history
leading to the present motion.

1

Plaintiff commenced this action on June 16, 2016. [Doc.
#1]. On September 2, 2016, plaintiff, having conflicting
information regarding defendant’s whereabouts, attempted service
of the Complaint on defendant via Connecticut’s long-arm
statute, Conn. Gen Stat. §52-59b(c).1 See Doc. #20 at 3; see also
Doc. #7 (return of process). Defendant has not filed an
appearance in this matter or answered the Complaint.
On October 6, 2016, plaintiff filed a motion for entry of
default pursuant to Federal Rule of Civil Procedure 55(b) [Doc.
#8], which the Clerk of the Court granted on October 12, 2016
[Doc. #13]. On November 14, 2016, plaintiff filed a motion for
default judgment pursuant to Federal Rule of Civil Procedure
55(b). [Doc. #12]. Defendant has not responded to this motion.
On December 21, 2016, Judge Thompson referred the motion for
default judgment to the undersigned. [Doc. #15]. On December 22,
2016, this Court entered an Order scheduling an evidentiary
hearing on the motion for default judgment, which required
plaintiff to submit a pre-hearing memorandum of law. See Doc.

Plaintiff intended to serve defendant in-hand when defendant was
scheduled to appear and testify in a proceeding initiated by
defendant under the Convention on the Civil Aspects of
International Child Abduction. See St. Denis v. St. Denis, No.
16CV441(VAB) (D. Conn. March 16, 2016). However, after defendant
repeatedly postponed his appearance, and unsuccessfully sought a
limited protective order prohibiting his ex-wife from serving
process on him in other litigation, see id. at Doc. ##83, 91,
97, it became apparent that defendant likely would not
personally appear in this District. See Doc. #28 at 3-4
1

2

#18. This Order required plaintiff to provide the Court with
specific information, including: “a discussion of how service of
process of the complaint was accomplished, with supporting
affidavits if necessary, and the legal authority explaining why
that service of process was sufficient[.]” Id. at ¶2.
On January 10, 2017, counsel for plaintiff caused the
Court’s December 22, 2016, Order to be served on an address
believed to belong to defendant via Federal Express,
international priority. See Doc. #21. On January 20, 2017, the
Court held an evidentiary hearing on plaintiff’s motion for
default, at which defendant did not appear. [Doc. #24]. At the
time of the January 20, 2017, evidentiary hearing, it was
unclear whether the Federal Express package had been delivered
to defendant at his claimed address in Brazil. Counsel for
plaintiff represented that the Court’s Order had additionally
been sent to defendant via two separate email addresses.
On January 30, 2017, the Court entered an order regarding
the sufficiency of service of process in this matter, as the
Court was unable to determine whether service of process had
been sufficient. See Doc. #26. Specifically, the Court found
that, “if, at the time process was served, defendant was
residing in Brazil, the record does not clearly demonstrate that
plaintiff employed the appropriate means by which to serve a

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defendant in a foreign country.” Doc. #26.2 As such, the Court
ordered plaintiff to “supplement the record with any evidence
that service of process on defendant was sufficient[,]” and at
plaintiff’s option, to provide “additional legal authority
supporting the sufficiency of service of process.” Id. at 6-7.
In response to this Order, plaintiff “acknowledge[d] that
service of process, although attempted in good faith, ha[d] been
unsuccessful.” Doc. #28 at 1. Accordingly, because defendant
purportedly now resides in Brazil, plaintiff moves for
permission to effectuate service by alternative means pursuant
to Federal Rule of Civil Procedure 4(f)(3). See Doc. #28.
Plaintiff also seeks additional time in which to serve
defendant, pursuant to Rule 4(m), if necessary. See id.
2.

Applicable Law
Rule 4(f) of the Federal Rules of Civil Procedure sets

forth the following procedures for serving an individual in a
foreign country:
Unless
federal
law
provides
otherwise,
an
individual... may be served at a place not within any
judicial district of the United States:
(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;
The Court credits the representations of counsel that in light
of the conflicting information then available to him, he made
diligent efforts to timely, and properly, serve defendant.
2

4

(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:
(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:
(i) delivering a copy of the summons and of the
complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses
and sends to the individual and that requires a signed
receipt; or
(3) by other means not prohibited by international
agreement, as the court orders.
Fed. R. Civ. P. 4(f). “Generally, there is no hierarchy among
the subsections in Rule 4(f). Service under subsection (3) is
‘neither a last resort nor extraordinary relief. It is merely
one means among several which enables service of process on an
international defendant.’” Advanced Aerofoil Techs., AG v.
Todaro, No. 11CV9505(ALC)(DCF), 2012 WL 299959, at *1 (S.D.N.Y.
Jan. 31, 2012) (quoting Rio Props. v. Rio Int’l Interlink, 284
F.3d 1007, 1015 (9th Cir. 2002)).
“An alternative method of service under Rule 4(f)(3) ‘is
acceptable if it (1) is not prohibited by international
agreement; and (2) comports with constitutional notions of due
process.’” Fisher v. Petr Konchalovsky Found., No.
15CV9831(AJN), 2016 WL 1047394, at *2 (S.D.N.Y. Mar. 10, 2016)
(quoting S.E.C. v. China Intelligent Lighting & Elecs., Inc.,

5

No. 13CV5079(JMF), 2014 WL 338817, at *1 (S.D.N.Y. Jan. 30,
2014)). To comport with constitutional notions of due process,
the means by which alternative service is effectuated “must be
‘reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them
an opportunity to present their objections.’” Pfizer Inc. v.
Domains By Proxy, No. 3:04CV741(SRU), 2004 WL 1576703, at *1 (D.
Conn. July 13, 2004) (quoting Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)). “The decision of whether to
order service of process under Rule 4(f)(3) is committed to the
sound discretion of the district court.” Stream SICAV v. Wang,
989 F. Supp. 2d 264, 278 (S.D.N.Y. 2013) (citation and internal
quotation marks omitted).
3.

Discussion
Here, defendant is purportedly a permanent resident of

Brazil, but frequently travels and maintains other residences
around the world. See Doc. #28 at 3-6; see also Doc. #28-1,
February 10, 2017, Declaration of Kenneth G. Walsh (“Walsh
Decl.”) at ¶¶5-6. Accordingly, plaintiff requests permission to
effectuate service by sending a copy of the Complaint, summons
and other introductory orders by the following means: (1)
certified mail, return receipt requested, to the Florida address
from which defendant’s companies currently operate; (2)
certified mail, return receipt requested, to the Connecticut
6

attorney who is representing defendant in a Connecticut family
court matter; and (3) by email, directly to defendant, using two
email addresses believed to be actively monitored by defendant.
See Doc. #28 at 6-7.
As noted, defendant is allegedly a permanent resident of
Brazil. See St. Denis, No. 16CV441(VAB), Doc. #16 at ¶8 (March
4, 2016, Affidavit of Thomas St. Denis in support of Motion to
Dismiss: “By the summer of 2014, as a Brazilian citizen, I left
the USA and established my permanent legal residence and abode
in Brazil[.]”); id. at ¶35 (“My residence and primary abode is
in Brazil.”); see also St. Denis, No. 16CV441(VAB), Doc. #17 at
¶25 (March 15, 2016, Supplemental Affidavit of Thomas St. Denis
in Support of Motion to Dismiss: “I have maintained a consistent
residence in Brazil since 2013. I do not have a residence in the
United States.”).
“The United States and Brazil both are parties to the
Inter–American Convention on Letters Rogatory, Jan. 30, 1975,
and the Additional Protocol to the Inter–American Convention on
Letters Rogatory, May 8, 1979.” (hereinafter the “Convention”).
Manela v. Garantia Banking Ltd., 940 F. Supp. 584, 593 n.16
(S.D.N.Y. 1996). Although this Convention “provides for service
via letters rogatory[,]” J.B. Custom, Inc. v. Amadeo Rossi,
S.A., No. 1:10CV326, 2011 WL 2199704, at *2 (N.D. Ind. June 6,
2011), it is significant that the Convention “does not prohibit
7

alternate means of service.” Lyman Morse Boatbuilding Co. v.
Lee, No. 2:10CV337(DBH), 2011 WL 52509, at *3 (D. Me. Jan. 6,
2011) (citing Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d
634, 640 (5th Cir. 1994)); see also Russell Brands, LLC v. GVD
Int’l Trading, SA, 282 F.R.D. 21, 24 (D. Mass. 2012) (“Although
... both Brazil and the United States are parties to the
Convention, the Fifth Circuit, the only circuit court to address
the issue, has held that letters rogatory are not the exclusive
means for serving process in signatory countries. ... The Court
agrees.” (citing Kreimerman, 22 F.3d at 639)); SA Luxury
Expeditions, LLC v. Latin Am. for Less, LLC, No. 14CV04085(WHA),
2015 WL 4941792, at *1 (N.D. Cal. Aug. 19, 2015) (“Although the
Inter–American Convention and the Additional Protocol provide
for the service of process by way of letters rogatory, every
court that has addressed the question has found that the
convention and additional protocol do not preclude service by
other means.”) (citing Krierman, 22 F.3d at 647)). Accordingly,
plaintiff may effectuate service by alternative means, provided
that the proposed procedure “comports with constitutional
notions of due process.” Fisher, 2016 WL 1047394, at *2.
The Court finds that the method of service proposed by
plaintiff comports with constitutional notions of due process as
it is reasonably calculated, under the circumstances, to apprise
defendant of the pendency of this action and afford defendant an
8

opportunity to present his objections. This is particularly true
where, as here, defendant appears for all intents and purposes
to be avoiding service of process in this District.3 Not only
will defendant receive direct notice of the pendency of this
action via two active email accounts, see Doc. #28-2, Klingman
Decl. at ¶5, but one of his current attorneys will also receive
notice of the pendency of this action. See id. at ¶6; see also
Doc. #28-2 at 9-10.4 Plaintiff will also take the additional step
of mailing process to defendant at the current address of record
for his two companies. See Doc. #28-2, Klingman Decl. at ¶7; see
also Doc. #28-2 at 13.
Courts in other districts have sanctioned similar means of
alternative service on defendants who reside in countries

For example, defendant refused to accept delivery of the
Federal Express package containing the Court’s Order Regarding
Evidentiary Hearing and other default-related documents. See
Doc. #28-2, February 10, 2017, Declaration of Patrick A.
Klingman (“Klingman Decl.”) at ¶4 (“I contacted FedEx to
determine the status of my January 10, 2017 shipment to
Defendant. I was told that delivery of the package was refused
by Defendant and that the package had been shipped back.”); see
also Doc. #28-2 at 6 (FedEx tracking receipt reflecting
recipient refused delivery on January 17, 2017). There is also
evidence of record that defendant is actively evading service of
process in another actions pending against him. See Doc. #28-1,
Walsh Decl. at ¶¶7, 11.
3

Attorney Klingman’s Declaration notes that defendant’s counsel
in the Connecticut State Court matter had filed a motion to
withdraw her appearance. See Doc. #28-2, Klingman Decl. at ¶6.
However, that proceeding’s docket reflects that the motion to
withdraw was denied on February 10, 2017. See St. Denis v. St.
Denis, No. FST-FA16-6027376-S (Conn. Super. Ct. Feb. 10, 2017).
4

9

subject to the Convention, finding that the proposed process
comports with constitutional notions of due process. For example
the District of Maine permitted alternative service on a
Brazilian resident who had been avoiding service. See Lyman,
2011 WL 52509, at *3. In ordering alternative service under Rule
4(f)(3), the Court noted that because plaintiff had instructed
his attorneys not to accept service on his behalf, “[i]t may
reasonably be assumed that he will reject any attempt at
personal service, and it is clear that any attempt at formal
service through the Brazilian judicial system will be, if not
fruitless, prolonged for such an extensive period of time that
evidence and testimony may well be affected.” Id. Accordingly,
the Court ordered plaintiff to “make service in hand upon the
defendant’s [local] attorneys ... and by certified ‘next day’
mail, or its equivalent, upon the defendant’s attorney in
London[,]” and to “notify the defendant via e-mail of th[e]
order and of the ordered service when it has been accomplished.”
Id.
The District of Massachusetts also sanctioned a similar
means of service upon a defendant residing in Brazil, noting
that “it is clear that service of process through diplomatic
channels will be less expedient and more costly than through
certified or international mail.” Russell Brands, 282 F.R.D. at
25. Accordingly, the Massachusetts court “accepted Plaintiff’s
10

proposed means of service by personal in-hand service on
Defendant’s Massachusetts attorney, service by email upon
Defendant’s Virginia attorney, and service via Federal Express
at Defendant’s Brazilian address.” Id. at 26 (footnotes
omitted). In reaching this conclusion, the court distinguished
other cases which supported the argument that service of process
on a Brazilian party should be made via letters rogatory. See
id. at 25. Notably the Massachusetts court differentiated
between cases implicating service of a subpoena, “which compels
action and carries with it the full array of American judicial
power,” and a notice of complaint, “which simply delivers
information.” Id. Similarly here, plaintiff does not seek to
serve a subpoena, but rather documents providing notice of the
Complaint.
In addition to serving defendant’s Connecticut attorney,
and mailing a copy to the current address of his companies,
service by email is also appropriate under the current
circumstances. Here, plaintiff has submitted an affidavit that
he previously communicated with defendant at the two email
address to which he proposes service. See Doc. #28-1, Walsh
Decl. at ¶8. Plaintiff’s counsel recently sent correspondence to
these same addresses and “confirm[s] that [the] email was not
returned as undeliverable and presumably was delivered as
addressed to Defendant.” Doc. #28-2, Klingman Decl. at ¶5.
11

Accordingly, the additional step of sending by email further
ensures that the alternative service comports with due process.
See Fisher v. Petr Konchalovsky Found., No. 15CV9831(AJN), 2016
WL 1047394, at *2 (S.D.N.Y. Mar. 10, 2016) (where plaintiff
“demonstrate[d] that the email [wa]s likely to reach the
defendant, then service by email alone comport[ed] with due
process” (citation and internal quotation marks omitted)); see
also Rio Props., 284 F.3d at 1013, 1016 (Service of process on
Costa Rican defendant by email, by mail at a claimed residential
address, and on defendant’s attorney was sufficient, given
plaintiff’s “inability to serve an elusive international
defendant, striving to evade service of process.”).5

As acknowledged by plaintiff, see Doc. #28 at 15 n.15, although
“letters rogatory are not the exclusive means of serving process
in countries which are signatories to the Convention, the Fifth
Circuit in Kreimerman warned that plaintiffs who opted not to
utilize letters rogatory ‘assume the risk that other legal
principles, like the principle of international comity, might
hinder their establishment of jurisdiction over the defendants’
and, as relevant here, may ‘discover that their failure to
employ the Convention’s safe harbor procedures makes enforcement
of their judgments abroad more difficult or even impossible.’”
Russel Brands, 282 F.R.D. at 26 n.1 (citing Kreimerman, 22 F.3d
at 644). The Court notes that principles of comity are not as
pronounced in this case, given: the proposed means of service;
defendant’s extensive ties to the State of Connecticut, and the
United States, generally; defendant’s United States citizenship;
and the provision of the Employment Agreement at issue for
exclusive jurisdiction in this Court. C.f. J.B. Custom, 2011 WL
2199704, at *4 (requiring plaintiff to “observe any provisions
of Brazilian law ... that govern the service on Brazilian
nationals” when serving process on two Brazilian corporations);
see also Allstate Life Ins. Co. v. Linter Grp. Ltd., 994 F.2d
996, 999 (2d Cir. 1993) (“[T]he extension or denial of comity is
5

12

Plaintiff also requests an extension of time in which to
serve defendant under Rule 4(m). “Although Rule 4(m) creates an
exception for service in a foreign country pursuant to
subdivision (f), which sets forth procedures for such service,
this exception does not apply if, as here, the plaintiff did not
attempt to serve the defendant in the foreign country.” USHA
(India), Ltd. v. Honeywell Int’l, Inc., 421 F.3d 129, 133–34 (2d
Cir. 2005) (internal citation and quotation marks omitted).
Nevertheless, “district courts have discretion to grant
extensions even in the absence of good cause.” Zapata v. City of
N.Y., 502 F.3d 192, 196 (2d Cir. 2007). Here, the Court finds
good cause to grant plaintiff’s request for additional time to
effectuate service. Plaintiff initially made a good faith effort
to serve defendant and was not aware of the service deficiencies
until raised by the Court. As previously discussed, the record
also suggests that defendant is actively attempting to evade

within the court’s discretion[.]); In GLG Life Tech Corp. Sec.
Litig., 287 F.R.D. 262, 266 (S.D.N.Y. 2012)(“Some courts have
held that principles of comity encourage the court to insist, as
a matter of discretion, that a plaintiff attempt to follow
foreign law in its efforts to secure service of process upon
defendant. Inasmuch as Rule 4(f)(3) calls upon a court to
exercise its discretion, however, each case must be judged on
its facts. In the present case, it is difficult to see how
principles of comity would be upset if alternative service is
ordered on a defendant who is not a citizen of China and has
voluntarily and closely associated himself with a non-Chinese
entity that is already a served co-defendant.” (internal
citation and quotation marks omitted)).
13

service of process. Further, dismissing the action at this
juncture under Rule 4(m) would not only be a waste of judicial
resources expended to date, but would also effectively reward
defendant for his attempts to evade service thus far.
Accordingly, plaintiff’s request for additional time to serve
defendant is GRANTED, nunc pro tunc.
4. Conclusion
Accordingly, based on the foregoing, plaintiff’s Motion for
Alternate Service [Doc. #28] is GRANTED.
It is hereby ORDERED pursuant to Federal Rules of Civil
Procedure 4(f)(3) and 4(m), that within ten (10) days of this
Ruling, plaintiff shall cause to be served, either directly, by
a Marshal, or other appropriate agent, a copy of plaintiff’s
June 16, 2016, Complaint [Doc. #1], June 17, 2016, Summons [Doc.
#2], all introductory orders [Doc. ##3-6], all pending motions
[Doc. ##11, 12], and a copy of this Ruling on defendant, Thomas
St. Denis, by each of the following means:
(1)

Certified mail, return receipt requested to:
Thomas St. Denis
Lumivisions Architectural Elements, Inc.
1911 Banks Road
Margate, FL 33063

(2)

Certified mail, return receipt requested to:
Heather Brown, Esq. o/b/o Thomas St. Denis
Legal Consulting Group LLC
45 Pine Street, 6A
New Canaan, CT 06840

14

(3)

By email directly to defendant at the following
addresses:
[e-mail]
[e-mail]

It is further ORDERED that plaintiff shall promptly file a
Notice with the Court confirming the above actions, and shall
thereafter file a Return of Service or otherwise submit evidence
of the receipt of the foregoing.6
This is not a Recommended Ruling. This is an order which is
reviewable pursuant to the “clearly erroneous” statutory
standard of review. See 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P.
72(a); and D. Conn. L. Civ. R. 72.2. As such, it is an order of
the Court unless reversed or modified by the district judge upon
motion timely made.
SO ORDERED at New Haven, Connecticut, this 2nd day of March,
2017.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
On February 24, 2017, plaintiff filed an Emergency Renewed
Motion for Prejudgment Remedy. [Doc. #31]. On the same day, the
Court granted the emergency motion, in part, and entered an
Order for Prejudgment Remedies. See Doc. ##31, 32. The Court
ordered that plaintiff serve, or attempt to serve, a copy of the
prejudgment remedy application, the Order for Prejudgment
Remedies, the Complaint, Summons, all introductory orders, all
pending motions, and any other statutorily required forms on
defendant by similar means approved of in this Ruling. See Doc.
#32 at 1-2. This, defendant may already have received the
summons and Complaint. The Court will nevertheless require
plaintiff to again serve the documents referenced in this Ruling
because the originally attempted service of process via
Connecticut’s long-arm statute was defective.
6

15