Patrick's Restaurant, LLC v. Singh
Filing
34
MEMORANDUM OPINION AND ORDER. 19 Objection is OVERRULED and 17 Order is AFFIRMED. (Written Opinion). Signed by Judge Eric C. Tostrud on 1/7/2019. (RMM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Patrick’s Restaurant, LLC,
File No. 18-cv-00764 (ECT/KMM)
Plaintiff,
MEMORANDUM OPINION
AND ORDER
v.
Sujit Kumar Singh,
Defendant.
Defendant Sujit Kumar Singh (“Singh”), a citizen and resident of India, appeals
from Magistrate Judge Katherine Menendez’s order authorizing alternative service via
email pursuant to Fed. R. Civ. P. 4(f)(3), which allows “an individual in a foreign country”
to be served “by other means not prohibited by international agreement, as the court
orders.” For the past nine months, plaintiff Patrick’s Restaurant, LLC (“Patrick’s”) has
been unable to serve Singh in India under the Hague Convention. But Singh is well aware
of the pending action, as evidenced by his lawyer’s appearance in the case for the limited
purpose of arguing the propriety of alternative service. Because the plain text of Rule
4(f)(3) does not require exhaustion of service under the Hague Convention, and email
service is not inconsistent with the Hague Convention or with due process, Judge
Menendez’s order will be affirmed.
I
Review of a magistrate judge’s ruling on a nondispositive order, including an order
for alternative service, is “extremely deferential.” Scott v. United States, 552 F. Supp. 2d
917, 919 (D. Minn. 2008). A ruling will be modified or set aside only if it “is clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). “A ruling is clearly erroneous
when the reviewing court is left with the definite and firm conviction that a mistake has
been committed. A decision is contrary to law when a court fails to apply or misapplies
relevant statutes, case law or rules of procedure.” Smith v. Bradley Pizza, Inc., 314 F.
Supp. 3d 1017, 1026 (D. Minn. 2018) (citations and internal quotation marks omitted).
II
Singh objects to Judge Menendez’s order on several grounds, which can be
consolidated into two questions on appeal: (1) Must a party exhaust Hague Convention
procedures before pursuing alternative service under Rule 4(f)(3)? (2) Is email service
preempted or precluded by the Hague Convention?1
A
Relying primarily on Rio Properties, Inc. v. Rio International Interlink, 284 F.3d
1007, 1015 (9th Cir. 2002), Judge Menendez determined that “Patrick’s Restaurant is not
required to exhaust the Hague Convention procedures”—whatever “exhaustion” means to
Singh, which is not altogether clear—“before pursuing service via an alternative means.”
ECF No. 17 (“Order”) at 2; see Rio Props., 284 F.3d at 1015 (holding that Rule 4(f)(3) is
not a “last resort” (quoting Forum Fin. Grp., LLC v. President & Fellows of Harvard Coll.,
199 F.R.D. 22, 23 (D. Me. 2001))).
1
Because these are purely legal questions, no recitation of the facts is necessary.
Regardless, the relevant facts are described in ample detail in Judge Menendez’s order.
See ECF No. 17 at 1–2.
2
As Judge Menendez aptly noted, nothing in the plain language of Rule 4(f) suggests
that a party must exhaust the Hague Convention before pursuing alternative service under
Rule 4(f)(3). Order at 2–3. Rule 4 offers three alternatives in the disjunctive, and the third
is for service “by other means not prohibited by international agreement, as the court
orders.” Fed. R. Civ. P. 4(f)(3); see also Smith v. Gnassingbe, No. 07-cv-4167 (ADM/JJK),
2009 WL 3300037, at *9 (D. Minn. Oct. 13, 2009) (referring to these as “several options
for service”); In re LDK Solar Secs. Litig., No. C-07-05182, 2008 WL 2415186, at *2 (N.D.
Cal. June 12, 2008) (“[Rule] 4(f)(3) stands independently of [Rule] 4(f)(1); it is not
necessary for plaintiffs to first attempt service through ‘internationally agreed means’
before turning to ‘any other means not prohibited by international agreement.’”). Had the
drafters of Rule 4(f)(3) wanted to constrain its applicability, they easily could have
provided a qualifying clause such as “If service under Rule (f)(1) or (f)(2) fails…”
The fact that they did not must mean something. See Rio Props., 284 F.3d at 1015
(“[C]ertainly Rule 4(f)(3) includes no qualifiers or limitations . . . .”).2
Nor does the Hague Convention contain any exhaustion requirement. In fact,
Article 15 contemplates that courts may enter default judgment after six months if Hague
Convention methods have not resulted in successful service. See Convention on Service
Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague
Convention”), art. 15, Nov. 15, 1965, 20 U.S.T. 361 (allowing for default judgment so long
2
To be sure, as Singh notes in his objection, Rio Properties involved attempted
service on a resident of Costa Rica, which, unlike India, is not a signatory to the Hague
Convention. Def.’s Obj. at 4; see Rio Props., 284 F.3d at 1012, 1015 n.4. But that
difference is not material. Under the plain language of Rule 4(f), there is no exhaustion
requirement.
3
as “the document was transmitted by one of the methods provided for in this Convention,”
at least “six months . . . ha[ve] elapsed since the date of the transmission,” and “every
reasonable effort has been made to obtain [a certificate of service] through the competent
authorities of the State addressed”). Read together with the preamble of the Hague
Convention, which proclaims the signatories’ intent to ensure prompt service, alternative
service under Rule 4(f)(3) is entirely consistent with the plain language and purpose of the
Hague Convention. See Hague Convention pmbl. (providing that “[t]he States signatory
to the present Convention . . . [d]esir[e] to create appropriate means to ensure that judicial
and extrajudicial documents to be served abroad shall be brought to the notice of the
addressee in sufficient time” and “expedit[e] the procedure” for service abroad (emphasis
added)).
Moreover, it is difficult to say when a party has “exhausted” Hague Convention
service. Must a party pursue waivers of service before seeking alternative service, as
Patrick’s did here? How many times does Patrick’s have to attempt service via the Hague
Convention? And how frequently must Patrick’s follow up with India’s Central Authority?
The difficulty of drawing a line between attempts that add up to exhaustion and those that
do not is another reason not to read an exhaustion requirement into the text of Rule 4(f)(3)
and the Hague Convention. Cf. Millbrook v. U.S., 569 U.S. 50, 57 (2013) (declining “to
read such a limitation into unambiguous text” where Congress did not elect to “further
narrow the scope of the proviso”).
4
B
Singh raises his two other objections in the alternative: First, he argues that under
Water Splash, Inc. v. Menon, 137 S. Ct. 1504 (2017), the Hague Convention method of
service is mandatory and “precludes alternative methods of service not authorized by the
Convention.” Def.’s Obj. at 2. Second, he seems to argue that even if alternative
nonauthorized methods are permissible in general, email service is impermissible because
India has objected to service by postal channels under Article 10 of the Hague Convention.
See id. at 4–5 (“India’s blanket objection to alternative methods of service in Article 10
should be construed as precluding other methods of service from being adopted as a
creative end run around Article 10’s prohibition on service of judicial documents via
mail . . . .”). Neither objection justifies reversal of Judge Menendez’s order.
First, Singh argues that one of the Supreme Court’s “central holdings” in Water
Splash, characterized by Judge Menendez as “non-authoritative dicta,” Order at 3, was that
“[t]he Hague Service Convention specifies certain approved methods of service and
pre-empts inconsistent methods of service wherever it applies,” Def.’s Obj. at 2 (citation
and internal quotation marks omitted). Singh seems to be arguing that email service is
preempted as an “inconsistent method of service.”
As Judge Menendez correctly
concluded, this argument misapprehends Water Splash.
Singh’s argument depends on the meaning of one sentence from the opening
paragraph of Water Splash: “To that end, the Hague Service Convention specifies certain
approved methods of service and ‘pre-empts inconsistent methods of service’ wherever it
applies.” 137 S. Ct. at 1507 (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk,
5
486 U.S. 694, 698 (1988)). Water Splash recited this excerpt of Volkswagenwerk in an
effort to provide background information not in any way connected to the Court’s
substantive analysis. In fact, the Court had not even identified the operative question
before it when it made this reference to Volkswagenwerk. It is quintessential dicta, as Judge
Menendez correctly found.3 Order at 3; see Passmore v. Astrue, 533 F.3d 658, 661 (8th
Cir. 2008) (“Dicta is a judicial comment made while delivering a judicial opinion, but one
that is unnecessary to the decision in the case and therefore not precedential.” (citation and
internal quotation marks omitted)).
Second, in a similar vein, Singh claims that India’s objection to Article 10—which,
among other things, says India doesn’t approve of service via “postal channels”—means
that India is opposed to email service. India has objected to Article 10 of the Hague
Convention, which reads as follows:
Provided 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,
b)
the freedom of judicial officers, officials or other competent persons
of the State of origin to effect service of judicial documents directly through
the judicial officers, officials or other competent persons of the State of
destination,
c)
the freedom of any person interested in a judicial proceeding to effect
service of judicial documents directly through the judicial officers, officials
or other competent persons of the State of destination.
See also Gurung v. Malhotra, 279 F.R.D. 215, 217 (S.D.N.Y. 2011). When a country
objects to Article 10, as India has, the logical corollary is that the Hague Convention does
3
Even if this were not dicta, the result would be the same. It is conceivable that email
is a method of service that is not “specifie[d]” in the Hague Convention but is still not
“inconsistent” with the Hague Convention.
6
interfere with, or preclude, “send[ing] judicial documents, by postal channels, directly to
persons abroad.” The question, then, is whether “postal channels” encompass service by
email. Put another way, is India’s express rejection of the means enumerated in Article 10
an implicit rejection of other related means, such as electronic transmission?
Courts are split on this issue, but a strong majority have concluded that a country’s
objection to Article 10 does not equate to an objection to email service. See F.T.C. v. Pecon
Software, Ltd., No. 12 Civ. 7186, 2013 WL 4016272, at *5 (S.D.N.Y. Aug. 7, 2013)
(“Numerous courts have held that service by email does not violate any international
agreement where the objections of the recipient nation are limited to those means
enumerated in Article 10.”); see also, e.g., Jackson Lab. v. Nanjing Univ.,
No. 1:17-cv-00363, 2018 WL 615667, at *3–4 (D. Me. Jan. 29, 2018); Sulzer Mixpac AG
v. Medenstar Indus. Co., Ltd., 312 F.R.D. 329, 331 (S.D.N.Y. 2015); DisputeSuite.com,
LLC v. Credit Umbrella Inc., No. CV146340, 2015 WL 12911757, at *4 (C.D. Cal. June
2, 2015); Lexmark Int’l, Inc. v. Ink Techs. Printer Supplies, LLC, 291 F.R.D. 172, 175 (S.D.
Ohio 2013); Facebook, Inc. v. Banana Ads, LLC, No. C-11-3619, 2012 WL 1038752, at
*2 (N.D. Cal. Mar. 27, 2012); Gurung, 279 F.R.D. at 219. But see, e.g., Graphic
Styles/Styles Int’l LLC v. Men’s Wear Creations, 99 F. Supp. 3d 519, 523 (E.D. Pa. 2015);
Compass Bank v. Katz, 287 F.R.D. 392, 396–97 (S.D. Tex. 2012); OGM, Inc. v. Televisa,
S.A. de C.V., No. CV 08-5742, 2009 WL 1025971, *3 (C.D. Cal. Apr. 15, 2009); Agha v.
Jacobs, No. C 07-1800, 2008 WL 2051061, at *1–2 (N.D. Cal. May 13, 2008).
The Court joins this strong majority of courts, finding their analysis better reasoned
and more persuasive. See Pecon Software, 2013 WL 4016272, at *5 (“Service by email . . .
7
[is] not among the means listed in Article 10, and India has not specifically objected to
[it].”); DisputeSuite.com, 2015 WL 12911757, at *4 (“Moreover, the Court is not aware of
any other international agreements with Russia [which, like India, has objected to Article
10] prohibiting service via email.”). Email does not fall within the text or the spirit of
“postal channels.” India’s objection to Article 10 is limited to the express terms of Article
10—postal channels—meaning email service is not precluded. See also Sulzer Mixpac,
312 F.R.D. at 331 (“[Postal mail and email] differ in relevant respects.
Email
communications may be more reliable than long-distance postal communications, and the
arrival of an email at its destination address may be more readily tracked.”);
DisputeSuite.com, 2015 WL 12911757, at *4 (stating that email “is sufficiently distinct
from postal channels that the two should not be equated under the Hague Convention”).
III
Finally, email service as ordered by Judge Menendez undoubtedly comports with
due process. Due process requires that all methods of service 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.” Mullane v. Cent. Hanover Bank &
Tr. Co., 339 U.S. 306, 314 (1950); see also Volkswagenwerk, 486 U.S. at 705 (“Under [the
Due Process] Clause, foreign nationals are assured of either personal service, which
typically will require service abroad and trigger the Convention, or substituted service that
provides ‘notice reasonably calculated’ . . . . (emphasis added) (quoting Mullane, 339 U.S.
at 314)). Although the plain terms of Rule 4(f)(3) do not make this requirement explicit,
all methods of service must be reasonably calculated to give notice. See Fed. R. Civ.
8
P. 4(f)(1)–(2); Rio Props., 284 F.3d at 1016 (“Even if facially permitted by Rule 4(f)(3), a
method of service of process must also comport with constitutional notions of due
process.”); accord Louis Dreyfus Commodities Suisse, SA v. Fin. Software Sys., Inc.,
703 F. App’x 79, 84 (3d Cir. 2017); Enovative Techs., LLC v. Leor, 622 F. App’x 212, 214
(4th Cir. 2015); Burda Media, Inc. v. Viertel, 417 F.3d 292, 303 (2d Cir. 2005).
Early emails to Singh sending courtesy copies of the summons and complaint
prompted him to obtain counsel, who has since appeared in this matter. See Sheu Decl.
¶¶ 2, 4–5, 9 [ECF No. 8], Ex. C [ECF No. 8-3], Ex. D [ECF No. 8-4]; Def.’s Mem. in
Opp’n at 1 [ECF No. 13] (“Defendant’s counsel appears specially and solely for the
purpose of challenging Plaintiff’s proposed means to effect service on Defendant.”). And
the record demonstrates that Singh frequently received business correspondence related to
this matter at that email address. See, e.g., Bernet Decl. ¶ 7 [ECF No. 9], Ex. A at 2 [ECF
No. 9-1], Ex. B at 2 [ECF No. 9-2], Ex. E [ECF No. 9-5]. Email service is therefore
“reasonably certain to inform” Singh of the pending lawsuit. Mullane, 339 U.S. at 315;
see also Power Elec. Distrib., Inc. v. Hengdian Grp. Linix Motor Co., Ltd., No. 13-cv-199
(ADM/HB), 2015 WL 880642, at *7 (D. Minn. Mar. 2, 2015) (“The failure to strictly
adhere to the agreed means of service in the Hague Convention is not automatically fatal
to effective service because the Convention should be read together with . . . Rule 4, which
stresses actual notice rather than strict formalism.” (citations and internal quotation marks
omitted)); F.T.C. v. PCCare247 Inc., No. 12 Civ. 7189, 2013 WL 841037, at *4 (S.D.N.Y.
Mar. 7, 2013) (“Service by email alone comports with due process where a plaintiff
demonstrates that the email is likely to reach the defendant.”) (collecting cases).
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ORDER
Based on the foregoing, and on all of the files, records, and proceedings in the
above-captioned matter, IT IS HEREBY ORDERED THAT Singh’s Objection [ECF
No. 19] is OVERRULED and Magistrate Judge Menendez’s October 26, 2018 Order
[ECF No. 17] is AFFIRMED with the additional analysis provided in this Memorandum.
Dated: January 7, 2019
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
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