Securities and Exchange Commission v. Tropikgadget FZE et al

Filing 55

Judge Indira Talwani: ORDER entered granting in part 52 Motion for Order. SEE FULL ORDER ATTACHED. (Bartlett, Timothy)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
TROPIKGADGET FZE
TROPIKGADGET UNIPESSOAL LDA
SERGIO HENRIQUE TANAKA
CARLOS LUIS DA SILVEIRA BARBOSA
CLAUDIO DE OLIVEIRA PEREIRA CAMPOS
VINICIUS ROMULO AGUIAR
THAIS UTINO AGUIAR
WESLEY BRANDAO RODRIGUES
ANDREW ELLIOT ARRAMBIDE
JULIO G. CRUZ
DENNIS ARTHUR SOMAIO
ELAINE AMARAL SOMAIO
PABLO ANDRES GARCIA
VIVIANE AMARAL RODRIGUES
SIMONIA DE CASSIA SILVA
GEOVANI NASCIMENTO BENTO
PRISCILA BENTO
Defendants.
and
UNIVEST FINANCIAL SERVICES, CORP.
COMPASSWINNER LDA
HAPPY SGPS SA
PARKWAY REAL ESTATE LLC
RST5 INVESTMENTS LLC
PAULO HIDEKI KOGA

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Relief Defendants.
ORDER
March 16, 2015

Civil Action No. 15-cv-10543-IT

Before the court is Plaintiff Securities and Exchange Commission’s (“SEC”) Motion For
an Order Pursuant to Federal Rule of Civil Procedure 4(f)(2)(C)(ii) Directing the Clerk’s Office
to Serve a Copy of the Complaint, Summons, and Orders Via International Overnight Mail
[#52], in which the SEC requests this court to issue an order directing the Clerk of the Court to
serve Defendants Tropikgadget FZE, Tropikgadget Unipessoal LDA, and Carlos Barbosa and
Relief Defendants Happy SGPS SA and Compasswinner LDA by sending via FedEx
International Overnight Mail with Delivery Confirmation the Complaint, Summons, Temporary
Restraining Order, and the March 11, 2015 Order issued by the court in this case.
Plaintiff SEC seeks to serve these foreign Defendants and Relief Defendants under
Federal Rule of Civil Procedure 4(f)(2)(C)(ii) and Article 10(a) of the Hague Convention. Rule
4(f)(2)(C)(ii) provides that a plaintiff may serve a foreign defendant “by . . . using any form of
mail that the clerk addresses and sends to the individual and that requires a signed receipt”
“unless prohibited by the foreign country’s law.”
Article 10(a) of the Hague Convention provides that as long as “the State of destination
does not object, the present Convention shall not interfere with – (a) the freedom to send judicial
documents, by postal channels, directly to persons abroad.” As the court in Ballard v. Tyco Int’l,
Ltd. recounts, “American courts sharply disagree about whether the phrase ‘the freedom to send
judicial documents’ in Article 10(a) encompasses within its meaning the freedom to serve the
summons and complaint commencing a lawsuit.” No. 04-1336, 2005 WL 1863492, at *3
(D.N.H. 2005). Compare Nuovo Pignone, SpA v. Storman Asia M/V, 310 F.3d 374, 383 (5th
Cir. 2002) (holding that the Hague Convention does not allow for service by mail) and Bankston
v. Toyota Motor Corp., 889 F.2d 172 (8th Cir.1989) (same) with Ackermann v. Levine, 788 F.2d
830, 838 (2d Cir. 1986) (holding that the Hague Convention provides for service by mail) and
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Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (same). District courts within the First
Circuit have likewise split. See Ballard, 2005 WL 1863492, at *3 n.6 (collecting cases). The
First Circuit has not weighed in on this issue, except to note in one unpublished decision that
such service is “at best of debatable validity under the Hague Convention,” Feliz v. MacNeill,
493 Fed. Appx. 128, 132 (1st Cir. 2012).
The court ALLOWS IN PART Plaintiff’s motion [#52]. In light of this unresolved
question of law, the court is disinclined to determine the rights of absent parties without notice to
them. Accordingly, the court will direct the Clerk’s Office to send to these Defendants and
Relief Defendants the Complaint, Summons, Temporary Restraining Order, and this court’s
March 11, 2015 Order at the addresses provided by Plaintiff in its proposed order [#52-1].
Such mailing shall be, at Plaintiff’s election, by either U.S. mail with delivery
confirmation or FedEx International Overnight Mail with Delivery Confirmation.1 Whether such
mailing constitutes proper service of process can be addressed after such mailing is made.
Plaintiff shall provide the Clerk’s Office with pre-paid postage in effecting such mailing.
IT IS SO ORDERED.
Date: March 16, 2015

/s/ Indira Talwani
United States District Judge

1

At this time, the court takes no position as to whether FedEx constitutes a “postal channel”
under Article 10(a) of the Hague Convention or “mail” under Rule 4(f)(2)(C)(ii).
3