Smith v. Wolf Performance Ammunition, et al.

Filing 64

ORDER granting in part and denying in part 57 Motion for substitute service on Third-Party Defendant Tula Cartridge Works. Signed by Magistrate Judge Nancy J. Koppe on 1/23/2015. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANDREW SMITH,
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Plaintiff(s),
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vs.
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WOLF PERFORMANCE AMMUNITION, et al., )
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Defendant(s).
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Case No. 2:13-cv-02223-JCM-NJK
ORDER
(Docket No. 57)

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Pending before the Court is Third-Party Plaintiff Sporting Supplies International’s (SSI)

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motion for substitute service on Third-Party Defendant Tula Cartridge Works. Docket No. 57. The

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Court has reviewed SSI’s motion, Defendant Tulammo, USA, Inc.’s opposition, and SSI’s reply.

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Docket Nos. 57, 58, 59. The Court finds that this motion is properly resolved without oral argument.

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See Local Rule 78-2.

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I.

BACKGROUND

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This matter arises out of an incident that allegedly occurred on April 7, 2012. Docket No.

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1-2, at 7. Plaintiff alleges that he was injured when the firearm and ammunition he was using

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exploded in his face. Id. On October 29, 2013, Plaintiff filed the instant action in the District Court

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for Clark County, Nevada. Id., at 11. Thereafter, SSI removed the case to this Court on December

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5, 2013. Docket No. 1. SSI filed its Answer to Plaintiff’s Complaint on December 11, 2013.

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Docket No. 7.

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On August 8, 2014, the Court granted SSI’s motion for leave to file a Third-Party Complaint

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against Tula Cartridge Works and Tulammo USA, Inc. (Tulammo). Docket No. 35. SSI claims that

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Tula Cartridge Works and Tulammo may be liable to it for contribution and indemnification. The

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Third-Party Complaint was filed on August 12, 2014. Docket No. 36. On September 2, 2014, the

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Clerk of the Court issued the summonses for the Third-Party Complaint. Docket No. 42.

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On December 2, 2014, SSI filed the pending motion for substitute service of the Third-Party

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Complaint upon Tula Cartridge Works, a Russian company that has its principal place of business

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in Tula, Russia. Docket No. 57, at 3. SSI represents that traditional methods of foreign service are

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impossible in this case because, since 2003, the Russian Federation has unilaterally suspended all

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judicial cooperation with the United States in civil and commercial matters. Id., at 4 (citing

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Nuance Commc’ns, Inc. v. Abbyy Software House, 626 F.3d 1222, 1239 (Fed. Cir. 2010)). Thus, SSI

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seeks leave to serve the Third-Party Complaint, translated into Russian, and summons on Tula

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Cartridge Works by: (1) international express mail to Tula Cartridge Works in Russia; (2) electronic

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mail using the e-mail addresses listed on Tula Cartridge Works’ website; and (3) serving counsel of

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record for Third-Party Defendant Tulammo, as “the domestic U.S. affiliate/agent of Tula Cartridge

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Works.” Id., at 2.

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On December 19, 2014, Tulammo filed an opposition to SSI’s motion for substitute service.

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Docket No. 58. First, Tulammo argues that SSI failed to demonstrate that traditional methods of

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service would be impossible. Id., at 5. Second, Tulammo argues that service upon it would be

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improper because “Tulammo is categorically not . . . the exclusive distributor of small arms

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ammunition manufactured by [Tula Cartridge Works]” and no shareholders of Tula Cartridge Works

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own shares of Tulammo Id., at 5.

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In reply, SSI contends that the option of non-traditional methods of service does not depend

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on whether traditional methods are also available. Docket No. 59, at 3. SSI also argues that the

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actual corporate relationship between Tula Cartridge Works and Tulammo is immaterial because

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Tulammo admits to “an on-going business relationship” with Tula Cartridge Works. Id., at 6.

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II.

SUBSTITUTE SERVICE
Rule 4(f)1 governs how to effect service upon an individual in a foreign country. Rule

4(f) provides:
Unless federal law provides otherwise, an individual-other than a minor, an
incompetent person, or a person whose waiver has been filed-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;
(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:

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(A) as prescribed by the foreign country's law for service in that country in
an action in its courts of general jurisdiction;

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(B) as the foreign authority directs in response to a letter rogatory or letter
of request; or

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(C) unless prohibited by the foreign country's law, by:

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(i) delivering a copy of the summons and of the complaint to the
individual personally; or

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(ii) using any form of mail that the clerk addresses and sends to the
individual and that requires a signed receipt; or

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(3) by other means not prohibited by international agreement, as the court orders.

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Pursuant to Rule 4(h), Rule 4(f) also applies to foreign corporations, partnerships, and

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unincorporated associations. See Fed.R.Civ.Pro. 4(h)(2).

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The Court has discretion in determining whether to allow alternative means of service of

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process under Rule 4(f)(3). Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007, 1016

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(9th Cir. 2002). In Rio, the Ninth Circuit held that the plain language of Rule 4(f)(3) requires only

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that service be directed by the court and that it not contravene an international agreement. Id. at

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1014. Service under Rule 4(f)(3) must also “comport with constitutional notions of due process,”

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meaning it must be “reasonably calculated, under the circumstances, to apprise the interested parties

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of the pendency of the action and afford them an opportunity to present their objections.” Id., at

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Unless otherwise noted, references to “Rules” refer to the Federal Rules of Civil Procedure.
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1016-17 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). The Ninth

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Circuit explicitly observed that service under Rule 4(f)(3) is not a “last resort” or “extraordinary

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relief,” and instead, is one way among several to serve process on an international defendant. Id.,

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at 1014 (“[W]e commit to the sound discretion of the district court the task of determining when the

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particularities and necessities of a given case require alternate service of process under Rule

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4(f)(3)”).

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Here, the Court finds that service by international express mail and e-mail is appropriate to

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serve the Third-Party Complaint and summons on Tula Cartridge Works. See UnitedHealth Group,

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Inc. v. United HealthCare, Inc., 2014 U.S. Dist. LEXIS 99447 (D. Nev. July 21, 2014) (authorizing

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Plaintiff to serve Vietnam Defendants by regular mail and e-mail). The motion asserts that Tula

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Cartridge Works is a Russian company with its principal place of business in Russia. SSI alleges

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that it attempted service by mailing the requisite copies and waivers of service to Tula Cartridge

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Works and that a signed waiver was never returned. Docket No. 59, at 3. Tulammo does not dispute

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these facts. See Docket No. 58.

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Tulammo does not claim that service by international express mail and e-mail violate

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international law. See id. Moreover, contrary to Tulammo’s assertion, SSI does not need to show

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that conventional service would be impracticable. There is no requirement to show that “service

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through the Hague [Convention] is insufficient” before the Court may order substitute service

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pursuant to Rule 4(f)(3). Id., at 5. Further, the Bureau of Consular Affairs’ circular on international

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judicial assistance published by the U.S. State Department states:

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In July 2003, Russia unilaterally suspended all judicial cooperation with the United
States in civil and commercial matters. The Russian Federation refuses to serve
letters of request from the United States for service of process presented under the
terms of the 1965 Hague Service Convention or to execute letters rogatory requesting
service of process transmitted via diplomatic channels.

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http://travel.state.gov/content/travel/english/legal-considerations/judicial/country/russia-federatio

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n.html (last updated on November 15, 2013); see also Nuance Commc’ns, Inc. v. Abbyy Software

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House, 626 F.3d 1222, 1237 (Fed. Cir. 2010) (Calista Enterprises Ltd. v. Tenza Trading Ltd., 2014

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WL 4214876, at *5 (D. Or. Aug. 26, 2014).

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Under these circumstances, the Court will permit SSI to effectuate service of process

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pursuant to Rule 4(f)(3) by serving the required service papers and a copy of this order, translated

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into the Russian language, on Third-Party Defendant Tula Cartridge Works via both (a) email, at all

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e-mail addresses listed on Tula Cartridge Works’ website and (b) first class, U.S. Mail International,

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postage pre-paid, at all known addresses for Tula Cartridge Works. The Court is satisfied that the

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methods of service to be utilized satisfy due process requirements, that is, they are reasonably

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calculated, under all the circumstances, to apprise Defendant Tula Cartridge Works of the action and

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afford it an opportunity to respond. Mullane, 339 U.S. at 314 (1950).

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III.

EXTENSION OF TIME FOR SERVICE

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SSI also requests additional time to complete service. Docket No. 57, at 2. Pursuant to Rule

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4(m), “[i]f a defendant is not served within 120 days after the complaint is filed, the court . . . must

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dismiss the action without prejudice against that defendant or order that service be made within a

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specified time. But if the plaintiff shows good cause for the failure, the court must extend the time

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for service for an appropriate period.” Fed.R.Civ.Pro. 4(m).

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Here, service was supposed to be completed by December 10, 2014.2 See Docket No. 36.

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SSI has shown that it is actively trying to pursue this litigation and, although it needs more time, has

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made attempts to serve Tula Cartridge Works by sending it a waiver of service. See Docket No. 59,

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at 3. Therefore, good cause exists to extend the service deadline.

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IV. CONCLUSION

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Based upon the foregoing,

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IT IS ORDERED:

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1.

Third-Party Plaintiff Sporting Supplies International’s motion for substitute

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service on Third-Party Defendant Tula Cartridge Works (Docket No. 57) is

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GRANTED in part and DENIED in part.

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2.

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Within seven (7) days of the date of service of this order, Sporting Supplies
International shall effectuate service pursuant to Rule 4(f)(3) by having the

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SSI filed the pending motion on December 2, 2014. Docket No. 57.
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required service papers and a copy of this Order, translated into the Russian

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language, on Third-Party Defendant Tula Cartridge Works via BOTH:

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a. E-mail addresses listed on Tula Cartridge Works’ website, and

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B. First class, U.S. Mail International, postage pre-paid, at all known

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addresses for Defendant Tula Cartridge Works.

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3.

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Service will be deemed complete within 14 days after the papers to be served by
first class, U.S. Mail International are deposited in the mail.

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Sporting Supplies International shall have until March 6, 2015, to serve the ThirdParty Complaint and summons on Tula Cartridge Works.

DATED: January 23, 2015

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NANCY J. KOPPE
United States Magistrate Judge

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