Kowalski v. Hawaii International Seafood, Inc. et al
Filing
105
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR ORDER ALLOWING SERVICE UPON CLEARSMOKE TECHNOLOGIES, LTD.'S U.S. COUNSEL 41 . Signed by JUDGE RICHARD L. PUGLISI on 08/10/2012. (eps) -- Plaintiffs have not presen ted any facts to suggest that they are unable to locate Clearsmoke in Malta or that they have attempted service in accordance with the Hague Service Convention. Under these circumstances, the Court declines to exercise its discretion to authorize alt ernative service on Clearsmoke's U.S. counsel CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIAM R. KOWALSKI AND HAWAII )
)
INTERNATIONAL SEAFOOD, INC.,
)
)
Plaintiffs,
)
)
vs.
)
)
ANOVA FOOD, LLC; ANOVA FOOD,
INC.; CLEARSMOKE TECHNOLOGIES, )
)
LTD.; DOES 1-10,
)
Defendants.
)
________________________________
)
CIVIL NO. 11-00795 HG-RLP
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFFS’ MOTION FOR
ORDER ALLOWING SERVICE UPON
CLEARSMOKE TECHNOLOGIES, LTD.’S
U.S. COUNSEL
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
MOTION FOR ORDER ALLOWING SERVICE UPON CLEARSMOKE
TECHNOLOGIES, LTD.’S U.S. COUNSEL
Before the Court is Plaintiffs’ Motion for Order
Allowing Service Upon Clearsmoke Technologies, Ltd.’s U.S.
Counsel, filed April 24, 2012 (“Motion”).
ECF No. 41.
Defendant
Anova Food, LLC filed a Statement of No Position regarding the
Motion on May 2, 2012.
ECF No. 43.
Defendant Clearsmoke
Technologies, Ltd. (“Clearsmoke”) filed its Opposition to the
Motion on May 8, 2012.
ECF No. 54.
Defendant Anova Food, Inc.
file a Position Statement regarding the Motion on May 8, 2012.
ECF No. 55.
No. 62.
Plaintiffs filed their Reply on May 22, 2012.
ECF
Pursuant to Local Rule 7.2(d), the Court elected to
decide the Motion without a hearing.
ECF No. 42.
For the
reasons detailed below, the Court DENIES the Motion.
BACKGROUND
Clearsmoke is organized under the laws of Malta, a
signatory to the Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters (“Hague
Service Convention”).
In the present Motion, Plaintiffs seek an
order deeming their prior attempts at service on Clearsmoke’s
U.S. counsel sufficient.
Mem. in Supp. of Mot. at 4-5, 8-9.
Alternatively, Plaintiffs seek an order under Federal Rule of
Civil Procedure 4(f)(3) allowing Plaintiffs to serve Clearsmoke’s
U.S. counsel in person or by email.
Id.
Before Plaintiffs filed the present Motion, Clearsmoke
filed a Motion to Vacate Entry of Default Against Defendant
Clearsmoke Ltd., Quash Service, and to Dismiss First Amended
Complaint for Lack of Personal Jurisdiction (“Motion to Quash and
Dismiss”).
ECF No. 29.
Clearsmoke’s counsel specially appeared
in filing the Motion to Quash and Dismiss to request that the
court quash service and dismiss the action based on lack of
personal jurisdiction.
Id.
On August 10, 2012, the court issued
its order on the Motion to Quash and Dismiss (“August 10 Order”).
ECF No. 104.
In the August 10 Order, the court granted
Clearsmoke’s request to vacate entry of default and quash
service.
Id. at 8-11.
The court denied the request to dismiss
the action for lack of jurisdiction, ruling that jurisdiction in
Hawaii “is reasonable and fair.”
Id. at 23.
2
Plaintiffs assert that they have already attempted to
serve Clearsmoke’s counsel with the complaint on two occasions.
First, Plaintiffs emailed a copy of the complaint to Duane
Zobrist, Esq. in January.
Mem. in Supp. of Mot. at 3.
Mr.
Zobrist is an attorney licensed to practice law in Virginia and
California.
Opp. at 9; Decl. of Zobrist ¶ 1.
According to
Plaintiffs, Mr. Zobrist called Plaintiffs’ counsel to discuss the
merits of the present litigation on January 17, 2012.
Supp. of Mot. at 3.
Mem. in
After that conversation, Plaintiffs emailed
a copy of the Complaint to Mr. Zobrist.
Id.
According to the
declaration of Mr. Zobrist submitted with the Opposition, Mr.
Zobrist is not an agent, officer, or employee of Clearsmoke, is
not authorized to accept service on behalf of Clearsmoke, and has
never made an appearance before any court on behalf of
Clearsmoke.
Decl. of Zobrist ¶ 2.
However, the Opposition and
Mr. Zobrist’s declaration do not address the alleged conversation
between Mr. Zobrist and Plaintiffs’ counsel regarding this
litigation on January 17, 2012, or explain the relationship, if
any, between Mr. Zobrist and Clearsmoke.
Second, Plaintiffs
hired a process server to serve the Complaint on Plaintiffs’
Hawaii counsel, Andrew L. Pepper, Esq., on April 23, 2012, the
day before Plaintiffs filed the present Motion.
Mot. at 4.
Mem. in Supp. of
After Mr. Pepper refused to accept service, the
3
process server dropped the summons on a chair in Mr. Pepper’s
office reception area.
Id.
ANALYSIS
Service of process on a foreign corporation is governed
by Rule 4(h)(2), which provides for service “in any manner
prescribed by Rule 4(f) for serving an individual, except
personal delivery under (f)(2)(C)(i).”
Fed. R. Civ. P. 4(h)(2).
Rule 4(f) provides that service can be made of a foreign
defendant “at a place not within any judicial district of the
United States” (1) by an internationally agreed means of service;
(2) if there is no internationally agreed means, by a method that
is reasonably calculated to give notice; or (3) “by any other
means not prohibited by international agreement, as the court
orders.”
Fed. R. Civ. P. 4(f).
Plaintiffs’ Motion seeks to
serve Clearsmoke through its U.S. counsel pursuant to Rule
4(f)(3).
The Ninth Circuit has held that “the task of
determining when the particularities and necessities of a given
case require alternate service of process under Rule 4(f)(3)” is
“commit[ed] to the sound discretion of the district court.”
Rio
Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th
Cir. 2002).
Service under Rule 4(f)(3) must “comport with
constitutional notions of due process” and must be “reasonably
calculated, under all the circumstances, to apprise interested
4
parties of the pendency of the action and afford them an
opportunity to present their objections.”
(internal quotation marks omitted).
Id. at 1016–17
“Courts have authorized a
wide variety of alternative methods of service under Rule
4(f)(3).”
Id. at 1016.
Alternative service methods approved by
courts include publication, ordinary mail, email, and delivery to
a defendant's attorney.
Id.
As an initial matter, the Court DENIES Plaintiffs’
Motion to the extent it requests that the Court deem Plaintiffs’
prior attempts at service on counsel sufficient.
Plaintiffs did
not obtain a court order authorizing such service prior to
attempting to serve Clearsmoke’s counsel.
Accordingly, such
attempted service was invalid under the Federal Rules.
R. Civ. P. 4(h)(2), 4(f).
See Fed.
The Court also DENIES Plaintiffs’
request for an order under Rule 4(f)(3) allowing service on
Clearsmoke’s U.S. counsel.
The Court declines to exercise its
discretion to authorize alternative service because the
circumstances do not justify ordering service on Clearsmoke’s
U.S. counsel.
As discussed in detail below, the facts at issue
here distinguish this case from the cases cited by Plaintiffs in
support of its request.
In Rio Properties, the Ninth Circuit stated that in
order to obtain relief under Rule 4(f)(3), the plaintiff “needed
only to demonstrate that the facts and circumstances of the
5
present case necessitated the district court’s intervention.”
284 F.3d at 1016.
The Ninth Circuit affirmed the district
court’s decision to allow service on a foreign corporation
through its U.S. attorney because that foreign corporation had
shown itself to be “an elusive international defendant, striving
to evade service of process.”
Id.
The foreign defendant refused
service at its U.S. address and the plaintiffs were unable to
discover the foreign defendant’s location in Costa Rica.
Id.
Notably, Costa Rica is not a signatory to the Hague Service
Convention.
Id.
In those circumstances, the Ninth Circuit held
that the district court properly exercised its discretion to
allow alternative means of service.
are present in this case.
Id.
No such circumstances
Plaintiffs have not presented any
facts to suggest that Clearsmoke is evading service.
Plaintiffs
do not assert that Clearsmoke has attempted to hide its location
in Malta.
In fact, it does not appear that Plaintiffs have
attempted to serve Clearsmoke in Malta.
The only means of
service attempted by Plaintiffs were the invalid attempts to
serve Clearsmoke’s counsel discussed above.
In Richmond Technologies, a California district court
case that Plaintiffs also rely upon, the district court allowed
service of a foreign corporation through its U.S. counsel.
Richmond Techs., Inc. v. Aumtech Bus. Solutions, No. 11 Civ.
2460, 2011 WL 2607158 (N.D. Cal. July 1, 2011).
6
In that case,
the plaintiff presented evidence that service in accordance with
the Hague Service Convention would take between six and eight
months.
Id. at *11.
The plaintiff argued that it faced “a
threat of immediate, irreparable harm” if it could not obtain
preliminary relief in the action.
Id. at *13.
The court held
that the plaintiff had “presented issues that require resolution
with greater urgency than the Hague Convention process can
accommodate, and alternative service under Rule 4(f)(3) is
warranted.”
Id.
Here, Plaintiff is not seeking any preliminary
relief and does not argue that service in Malta would
unreasonably delay this action.
Similarly, Plaintiffs’ citation to three cases from
other circuits is not persuasive because the facts in those cases
are easily distinguishable from the circumstances here.
First,
in RSM Production, the court held that service on the foreign
defendant’s counsel was appropriate in that particular case
because “plaintiffs have been prevented from following Hague
Service Convention procedures in the Russian Federation.”
RSM
Prod. Corp. v. Fridman, No. 06 Civ. 11512(DLC), 2007 WL 2295907,
at *2 (S.D.N.Y. Aug. 10, 2007).
Here, there is no indication
that Plaintiffs are prevented from following the Hague Service
Convention in Malta.
Second, in Nuance Communications, the court
had determined that service in accordance with the Hague Service
Convention was not possible because the foreign defendant’s
7
country did not consider it to be in effect.
Nuance Commc’ns,
Inc. v. Abby Software House, 626 F.3d 1222, 1238 (Fed. Cir.
2010).
Again, that circumstance is not present here.
Third, in
FMAC Loan Receivables, the plaintiff had tried to serve the
foreign defendant in compliance with the Hague Service Convention
and was unable to locate the defendant’s current address.
FMAC
Loan Receivables v. Dagra, 228 F.R.D. 531, 534 (E.D. Va. 2005).
As noted above, Plaintiffs have not presented any facts to
suggest that they are unable to locate Clearsmoke in Malta or
that they have attempted service in accordance with the Hague
Service Convention.
Under these circumstances, the Court
declines to exercise its discretion to authorize alternative
service on Clearsmoke’s U.S. counsel.
CONCLUSION
Based on the foregoing, the Court DENIES Plaintiffs’
Motion for Order Allowing Service upon Clearsmoke Technologies,
Ltd.’s U.S. Counsel.
IT IS SO ORDERED.
DATED HONOLULU, HAWAII, AUGUST 10, 2012.
_____________________________
Richard L. Puglisi
United States Magistrate Judge
KOWALSKI ET AL. V. ANOVA FOOD, LLC, ET AL., CIVIL NO. 11-00795 HG-RLP,
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR ORDER
ALLOWING SERVICE UPON CLEARSMOKE TECHNOLOGIES, LTD.’S U.S. COUNSEL
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?