Lipenga v. Kambalame

Filing 17

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/28/2015. (kw2s, Deputy Clerk)

FILED
US. DISTHICT COURT
IN THE UNITED STATES DISTRICT coufttll1RICT OF MARYLAND
FOR THE DISTRICT OF MARYLAND
Southern Division
1015DEC28 P I: 5 I

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FAIRNESS

CLEHK'S OFriCE
AT GK[[H8EL T

L1PENGA,

FlY

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•... J~:F: ,,-:.,'

Plaintiff,

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Case No.: G.III.I-t.39110

v.

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,lANE N. KAMBALAME,

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Defendant.

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MEMORANDUM

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OPINION

Presently before the Court is a Motion for Entry of Default or Ordcr I'ermilling
Service tiled by PlaintitI
construing

I.

Alternate

Fairness Lipenga. ECF No. 16. For the reasons stated below.

the Motion as one I()r alternate

service. the Motion is granted.

BACKGROUND
On December

19. 2014. Ms. Lipenga tiled the Complaint

that she was illegally trafficked

violations

See lOCI' No. I. The Complaint

Jane N. Kambalame.

of the Victims of Traflicking

and Violence

Protection

1589. 1590. the Fail' Labor Standards Act. 29 U.S.C.

SS

3-413.4.415.

intliction

of emotional

Md. Code Ann .. Labor & Emp.
imprisonmcnt.
enrichmcnt.

intentional

in the present action alleging

to the United States and was I()reed into labor. for which she was

not paid fail' wages. by Defendant.

SS

*

S 206(1).

Reauthorization
Maryland

as well as common

alleges

Act. 18 U.S.c.

Wage & Iiour Laws.

law tort e1aims of I~lise

distrcss. fraud. breach of contract. and unjust

See ECF No. I at ~~ 34-63.

A summons

was issued on Deccmber

19.2014. lOCI' NO.3. On April 23. 2015. thc Court

issued an Ordcr to Show Cause as to why the Complaint

should not be dismissed

It)r I~lilure to

prosecute

on the ground that Plaintiff failed to effect scrvice on Defendant

required by Federal Rule of Civil Procedure
on April 29. 2015. indicating

within 120 days. as

4(m). ECF No. 11. Plaintiff responded

that the case should not be dismissed

to that Order

because the 120-day limit
Rulc 101'

imposed by Rule 4(m) "does not apply to service in a foreign country under [Federal]
Civil Procedure]

4(1)

resides in Zimbabwe.
auspices

Fed. R. Civ. P. 4(m). Plaintiff indicated that Defendant
where she is in diplomatic

of the Malawian

that. from December

sought to identify and serve Defendant

through March 24. 2015. Plaintiff

10•

12 at 2.

personal address. Plaintiff identified a provision

law which permits service of process upon the employer

Courts Act. Ch. 0302. O. Vlll. r. 2(3) (Malawi).
http://www.malawilii.orglti
("Where

19.2014

at her personal address in Malawi. but that she was

personal address. ECF

Unable to uncover Defendant's
Malawian

service for the Republic of Malawi under the

Ministry of Foreign Affairs. ECF No. 12 at I: see ,,/so ECF No. I at ~

10. PlaintitT further represented

unable to find Defendant's

currently

of a public official. See

available at

les/mw/legislation/consol

idated-act/3 :02/courts _ act_pd t~20355. I'd f

the person to be served is in the Public Service. the Court shall ordinarily

sending the process in duplicate
such Hcad shall thereupon

serve him by

to the Head of the Office in which such person is employed

cause the process to be served ...

counsel sent a Request for Service to the Malawian
4(1) of the Federal Rules of Civil Procedure

and

"'). On March 26. 2015.Plaintitrs

Central Authority

in accordance

with Rule

and Articles 3 and 5 of the Hague COI1\"ention on the

Service Abroad of Judicial and Extrajudicial

./iJr signa/ure Nov. 15. 1965.20

of

Documents

in Civil or Commercial

U.S.T. 361. T.I.A.S. No. 6638 ("Hague

which both the United States and Malawi arc signatories.
16-4. On April 22. 2015. the Central Authority

Service Convention").

to

fd.: see a/so ECF No. 16 at 2: ECF No.

orally confirmed

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Matters. opened

receipt of the documents

and

stated that service of process would be effected by the end of the week by dispatching an orticer
of the court to serve the documents. ECF No. 16-5.
Pursuant to the Hague Service Convention. once service has been effected. the Central
Authority of the receiving state must complete a certilicate detailing how. where. and when
service was made. or explaining ,,'hy servicc was prevcnted. and return that ccrtilicate directly to
the applicant. Ifague Service Convention. supra. art. 6. On May 27. 2015. having not yet
received such certilicate. counsel for Plaintiff contacted Mr. Joseph Chigona. a represcntative of
the Malawian High Court. via email. I to inquire whcthcr service had been effected and whether a
certificate had been sent. ECF No. 16-6 at 6-7: see also ECF No. 16-5. Mr. Chigona responded
on May 28. stating: "Verily I assure you that service was effected. I will be fi)f\\"arding to you a
certificate of service shortly." ECF No. 16-6 at 6. The certiticate. however. has yet to be received
by Plaintiff: despite several other email inquiries from Plaintiffs Counsel to Mr. Chigona
through the middle of August. 2015. See ECF No. 16-6.
Defendant has previously communicated with Plaintitrs counsel via email using an
aol.com email address. ECF No. 16-7. This email address was identilied as Defendant's ortieial
email address for her work. ECF No. 16-8 at 7. and Plaintiff uncovered evidence that the email
address was in use as of October 2014. ECF No. 16-9. Plaintiff also represents that DetCndant
maintains a Facebook account on which. before recently being set to a private prolile. Plaintiff
had seen regular activity. ECF No. 16-1 at '114: lOCI'No. 16-10.
Relying on Mr. Chigona's assurance that service had been effected. because Defendant
has not appeared to defend in this action. PlaintifT moves for an entry of default pursuant to Rule
55(a) of the Federal Rules of Civil Procedure. In the alternative.PlaintilTseeks

an Order to

J The email address to which this inquiry was sent appears 10 be Mr. Chigona"s personal yahoo.coll1 email accounl.
See ECF No. 16-6 al 5.

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permit alternate service via Delendant"s email and Facebook account in accordance with Rule
4(1)(3) of the Federal Rules of Civil Procedure.

II.

STANDARD OF REVIEW
In serving process on an individual in a foreign country. a fcderal plaintilTmust comply

with both constitutional due process notice requirements and Rulc 4(1) of the Federal Rules of
Civil Procedure. Ellol"(lliw Tech~ .. LLC \'. Leor. No. CIV. JKB-14-3956. 2014 WL 7409534. at
* I (D. Md. Dec. 24. 2014) (quoting Whoslll!l"e. Illc. \'. (}rull. NO.1: 13-CV-00526-AJT. 2014 WL
670817, at *2 (E.D. Va. Feb. 20. 2014)). In order for service to satisfy due process. the method
of service must provide '''notice 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 .... Plemons \'. Gale. 396 F.3d 569. 573 (4th eir. 2005) (quoting Mlll/ane \'. CellI.
Hanover

Bank & 7"/Isl Co .. 339 U.S. 306. 314. 70 S. Ct. 652 (1950)). Rule 4(1) governs service

of process on an individual in a foreign country and provides three mechanisms of service:
(1) by any internationally agreed means of service that is reasonably calculated to
give notice. such as those authorized by the Ilague 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 [certain specified methods outlined in
the Rule 1 reasonably calculated to give notice ... : or
(3) by other means not prohibited by international agreement. as the court orders.
Fed. R. Civ. P. 4(1)(1 }-(3). "Rule 4(1) docs not denote any hierarchy or prelerence of one
method of service over another. and permitting service by alternative means is neither a
last resort nor extraordinary relief."'
A.S .. No. 7:14-CV-00339.
Prods.

N. Alii .. Illc.

Inn/llleriink.

I'.

u.s.

ex rei., UXB 1111'1. IIC'. I'. /7 Imaal
I

& Taahlllll

2015 WL 4208753. at *2 (W.O. Va. July 8. 2015) (quoting BI'

Dagra. 232 F.R.D. 263. 264 (E.n.Va. 2005): Rio Props .. Inc. \'. Rio

284 F.3d 1007. 1015 (9th Cir. 2002)).

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When applying Rule 4(t)(3). the Court can order any means of service "so long as
it provides reasonable assurance that defendant will be notified of the lawsuit and is not
prohibited by international agreement:'

Whosliere. 2014 WL 670817. at *2 (citing Rio

Props .. 284 F.3d at 1016-17: BP Prods. N. Alii.. 232 F.R.D. at 265: Lihel'/y Media
Holdings. LLC \'. Sheng Gcm, No. II-CV-02754-MSK-KMT.

2012 WL 122862 at

*

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(D.Colo. Jan. 17.2012)). "Ultimately. the decision whether to order alternative service of
process under Rule 4(t)(3) is within the sound discretion of the court:' Id. (citing lIel1lJ'
Teichmann \'. Caspian Flat Glass O.JSc. 2013 WL 1644808. at

*I

(W.O. Pa. April 16.

2013): BP Prodl'. N. Alii.. 236 F.R.D. at 271).
Once a defendant has been properly served. an entry of default is appropriate when that
party "has failed to plead or otherwise defend. and that failure is shown by affidavit or otherwise
.... " Fed. R. Civ. P. 55(a). A party has no duty to defend. however. unless it has been served
with the summons and complaint. or waives such service. pursuant to Rule 4 of the Federal Rules
of Civil Procedure. See Murphy Bros .. Inc. 11 Michetti Pipe Stringillg.

/IIC ..

526 U.S. 344. 350.

119 S.C!. 1322 (1999) (holding "one becomes a party officially. and is required to take action in
that capacity, only upon service of a summons"): see a/so Direct Mail Specialists.
COlllputerized Techll%gies.

/IIC .•

/IIC

\'.

Eclat

840 F.2d 685. 688 (9th Cir. 1988) (../\ federal court docs not

have jurisdiction over a defendant unless the defendant has been served properly under I Rule
4]:'). Rule 55(a) gives the clerk authority to enter a default. hut it is not a limitation on the power
of the Court to do so. lOA Charles Alan Wright & Arthur R. Miller. Federal Pmctice al/ll
Procedure,

* 2682 (3d ed. 1998): see also .Jacksoll \'. Beech. 636 F.2d 831. 835 (D.C. Cir. 1980)

C'Once a defendant fails to file a responsive answer. he is in default. and an entry of delault may
be made by either the clerk or thejudge:'

(emphasis added)). "The Court's entry of an Order of

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Default is within the discretion of the Court:' All/rschl//lser \'. 7i'lJ\'elers Indem. Co .. 145 F.R.D.
605. 610 (S,D, Fla, 1992). and. in the exercise of that discretion. the Court is mindful of thc
strong policy that. "as a general matter. defaults be avoided and that claims and defenscs be
disposed of on their merits," Co/le/l/nl'repl/ra/o/)'

An"l..

Inc.

I'.

J-IoOl'er Unirersl/I. Inc .. 616

F.3d 413. 417 (4th Cir. 20 I0).
III.

DISCUSSION

In her Motion. Plainti IT primarily seeks an entry of default against Defendant pursuant to
Rule 55(a) and Article 15(2) of the I-Iague Scrvice Convention. which provides:
Each Contracting State shall be liTe to dcclare that the judge .. , may give
judgment even if no certificate of service or delivery has been received. if all thc
following conditions are fulfilleda) the document was transmitted by one of the methods provided for in this
Convention.
b) a period of time of not less than six months. considered adequate by the judge
in the particular case. has elapsed since the date of the transmission of the
document.
c) no certificate of any kind has been received. cven though every reasonable
enort has been made to obtain it through the competent authorities of thc State
addressed.
Hague Service Convention. supra. art. 15(2), Plaintiff contends that she has satisfied cach of
these three conditions because she submitted a requcst for sen'icc of process to thc Malawian
Central Authority on March 26. 2015. more than six months ago, requcsting that the documcnts
be served by a method that is proper undcr Malawian law. and that she has made "evcry
reasonable effort" to obtain a certificate by regularly corresponding with representatives at the
Malawian Ccntral Authority, lOCI'No. 16 at 8,
Nevertheless. at this juncture. the Court concludes that it would not be appropriate to
enter delault against Defendant until Plaintiff has exhausted all reasonable means of assuring that
Defendant has received notice of the instant lawsuit. Although Plaintiffs counsel receivcd

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emails from an unoflicial
Court "assuring"

address li'oman

individual

purportedly

rcprescnting

that service had been effected. there is no indication.

has. in fact. bcen made personally

preference

for deciding cases on their merits. the Court will exercise
Plaintiffs

issue, if; after alternate

formal or otherwise.

its discretion

that

and deny

request for an entry of default. The Court will. however.

service is effected.

High

aware of this pending suit.2 In light of the strong

Defendant

without prejudice

Malawi's

Delendant

still fails to plead or otherwise

revisit this
delend in

this action:'
Because Plainti IThas been unable to obtain proof of service li'om the Malawian
Authority,

the COlIl1 will permit Plaintiff to use an alternate

Defendant

notice of this action. Under the circumstances.

service via email and Facebook

is appropriate.

process because

calculatcd

presented

it is reasonably

evidence

[e-mail]

that Defendant

Central

method of service to attempt to givc

the Cou11 believes that alternate

Service through these channels comports

to provide Defendant

with due

notice of this suit. Plaintiffhas

was. at least until recently. actively using the email account

and actively using a Facebook

account under her name. Srr ECF No. 16-1

at ~ 14; ECF No. 16-7; ECF No. 16-8 at 7; ECF No. 16-9; ECF No. 16-10: srr also U.S rx rei..

UXB In! '/.2015 WL 4208753. at *2 (finding that service by email was reasonably
provide notice where party had previously
suggesting
(internal

that this was a "preferred
quotation

contacted

method

IJ

marks and citation omitted).

plaintilTthrough

of communication
Moreover.

calculated

to

his personal email.

which he regularly uses"

prior to Iiling the lawsuit. Plaintilrs

21n support of the Motion. Plaintiff cites to cases that which indicate that. ill interpreting Article 15(2). cOUI1s have
concluded that a plaintifT need not show proof of actual service in order to obtain an entry of default. 5;(!('

Marscha/lser.

145 F.R.D. at 610: Thomas \'. 8io<'ille Scla\'(). No. CIVA94CV

1568RSI'/DNII.

1998 WI. 51861. at *2

(N.D.N.Y. Feb. 4, 1998). Even so. because, as will be IlJl1her e.\plained. alternate methods of service arc available
here, it \vQuld be imprudent to enter default at this time.
For this reason. the Court also orders thai a copy of this Memorandum Opinion and accompanying Order be served
on Defendant when alternate service is efTected so that Defendant has notice of the repercussions ifshe l~tils to
respond to the Complaint.
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counsel electronically communicated with Defendant about the basis for Plaintiff-s allegations in
an attempt to negotiate an "amicable resolution" to her claims. and forewarned that Plaintiff was
"forced to seek other aVenues of redress'" ECF No. 16-7 at 2-3: Sl!l! also W!losf!erl!. 2014 WL
670817. at *4 (noting that "[iJn tailoring alternative methods of process pursuant to Rule 4(t)( 3).
courts have taken into consideration whether defendant already possessed either knowledge of
suit or that [sJhe may be the subject to a suit""(citing BI' I'rod,'. N. Am,. 236 F.R.D. at 272».
Further. the Court Iinds no evidence that alternate service by email and social media
websites is prohibited by international agreement. Article 10 of the Ilague Service COIlI'ention
allows lor service of process through alternative means such as "postal channels" and "judicial
oflicers," provided that the destination state does not object to those means. Hague Service
Convention, supra. art. I0; see a/so F. T C.

1',

[,CCare 2-17 Inc .. No. 12 CIV. 7189 PA E. 2013 WL

841037. at *3 (S.D.N.Y. Mar. 7.2013) (noting that. where country did not object to service by
Facebook, service through the social media website was permitted): IVI1Osllerl!. 2014 WL
670817. at *3 (noting that "'[sJeveral courts have permitted service of process by email and other
electronic communications"

(citing cases». Mala\\'i has not objected to Article 10 of the Hague

Service Convention, nor has it objected to service of process through alternate channels
including email and socialmcdia websites, Thus. service via email and Faccbook is appropriate
in this case under Rule 4(1)(3). and. accordingly the Court will order that process be served
through those ehannels.

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IV.

CONCLUSION
For the foregoing reasons, Plaintiffs Motion for Entry of Default or Order Permitting

Alternate Service, ECF No. 16, construed as a Motion for Alternate Service, is GRANTED. A
separate Order follows.

Dated: December "/.fr, 2015
GEORGE J, HAZEL
United States District Judge

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