Michnovez et al v. Blair, LLC

Filing 82

///ORDER re Service of A-One Textile and Towel Industries: Plaintiffs' claims against A-One are dismissed, for lack of timely service, but that dismissal is without prejudice. So Ordered by Magistrate Judge Landya B. McCafferty.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

John Michnovez, individually
and as Executor of the Estate
of Velma Michnovez; and
Susan Michnovez
v.

Civil No. 10-cv-110-LM

Blair, LLC and A-One Textile
and Towel Industries

O R D E R
Before the court is plaintiffs’ response to the court’s
order to show cause why their claims against A-One Textile and
Towel Industries (“A-One”) should not be dismissed for failure
to effect timely service.

In their response, plaintiffs point

out that they filed a return of service on February 24, 2011,
and argue that their service on A-One complied with the relevant
provisions in the Federal Rules of Civil Procedure (“Federal
Rules”).

Based upon plaintiffs’ response, the court can neither

agree that their attempt at service was effective nor conclude
that it was defective.

Necessarily, then, plaintiffs have

failed to establish that the filing they made on February 24 is
evidence of timely effective service.

For that reason,

plaintiffs’ claims against A-One are dismissed without
prejudice.1
According to plaintiffs’ amended complaint, A-One is a
foreign corporation with a principal place of business in
Karachi, Pakistan.

To effect service of their amended complaint

on A-One, plaintiffs retained Crowe Foreign Services, a business
that specializes in serving process around the world.

According

to Celeste Ingalls, Crowe’s Director of Operations, “standard
service in Pakistan via the designated Central Authority is
unreliable at best, with all but one request for service in the
past 48 months completed and returned (unserved).”
Ingalls Decl. (doc. no. 81-1) ¶ 4.

Pls.’ Resp.,

Presumably for that reason,

Crowe engaged a private process server to make service on A-One.
On February 24, 2011, plaintiffs filed the affidavit of a
Pakistani resident indicating that he or she2 had personally
served the amended complaint on Mr. Haji Muhammad Ashraf, who is

1

While it is not the court’s place to suggest litigation
strategy, plaintiffs’ attempts to bring in far-flung defendants
have always been a bit puzzling, given the potential
availability of a complete recovery from Blair under the
doctrine of strict liability, which theory plaintiffs have at
least recognized in their second amended complaint, albeit in
the context of claims that appear to sound in negligence.
2

In the affidavit, the name of the process server is
handwritten and indecipherable.

2

identified as “Owner/Director” of A-One Textile and Towel
Industries.

A-One has not appeared.

The question before the court is whether plaintiff’s
attempt to serve A-One was effective.

“[O]nce challenged,

plaintiffs have the burden of proving proper service.”

Rivera-

Lopez v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir.
1992) (citing Saez Rivera v. Nissan Mfg. Co., 788 F.2d 819, 821
n.2 (1st Cir. 1986); Aetna Bus. Credit, Inc. v. Universal Decor
& Int. Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981)).
To be served “at a place not within any judicial district
of the United States, [A-One must be served] in any manner
prescribed by Rule 4(f) for serving an individual, except
personal delivery under (f)(2)(C)(i).”3

Fed. R. Civ. P. 4(h)(2).

Rule 4(f), in turn 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:

3

It has been held that while Rule 4(h)(2) prohibits
personal delivery under Rule 4(f)(2)(C)(i), it does not prohibit
personal delivery under Rule 4(f)(2)(A). See Tow v. Rafizadeh,
(In re Cyrus II P’ship), 392 B.R. 248, 259 (Bankr. S.D. Tex.
2008) (“Rule 4(f)(2)(A) is a separate provision from Rule
4(f)[(2)](C)(i). The exclusion by Rule 4(h)(2) of Rule
4(f)(2)(C)(i) as a means of service of process does not affect
the applicability of Rule 4(f)(2)(A).”).

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(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:
(A) as prescribed by the foreign country’s law for
service in that country in an action in its
courts of general jurisdiction;
(B) as the foreign authority directs in response to
a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country’s law,
by:
(i) delivering a copy of the summons and of the
complaint to the individual personally; or
(ii) using any form of mail that the clerk
addresses and sends to the individual and
that requires a signed receipt; or

(3)

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

Fed. R. Civ. P. 4(f).
Pertinent to Rule 4(f)(1), the United States and Pakistan
are signatories to The Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial
Matters (hereinafter “Hague Service Convention” or “the
convention”).

By its own terms, the convention provides that it

“shall apply in all cases, in civil or commercial matters, where

4

there is occasion to transmit a judicial or extrajudicial
document for service abroad.”

Hague Service Convention art. 1,

Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163; see also
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705
(1988).
Articles 3 through 6 of the convention authorize service
through the “Central Authority” of the country where the entity
to be served resides, also known as the “State of destination.”
The convention further states:
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.
Hague Service Convention art. 10.

Finally, the convention

provides:
To the extent that the internal law of a
contracting State permits methods of transmission,
other than those provided for in the preceding

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articles, of documents coming from abroad, for service
within its territory, the present Convention shall not
affect such provisions.
Id. art. 19.
According to plaintiffs, they made effective service on AOne because they served A-One in accordance with Article 10(c)
of the Hague Service Convention, and Pakistan has registered no
objection to service under Article 10(c).

The court is not

persuaded.
While Pakistan’s position on Article 10(c) is not entirely
clear, it has not formally objected to service under that
provision of the convention.

Pakistan has expressly stated that

it has no objection to Articles 10(a) and (b).

See Table

Reflecting Applicability of Articles 8(2), 10(a)(b) and (c),
15(2) and 16(3) of the Hague Service Convention,
http://www.hcch.net/upload/applicability14e.pdf (last visited
Oct. 27, 2011).

Pakistan’s statement of objections, however,

does not say anything about Article 10(c) one way or the other.
Thus, Pakistan has not expressly objected to Article 10(c).

For

that reason, the court will operate under the presumption that
Pakistan’s affirmative non-objection to Articles 10(a) and (b)
applies equally to Article 10(c).

6

In their response to the court’s show-cause order,
plaintiffs rely on two cases from the state courts of New York,
Casa De Cambio Delgado, Inc. v. Casa De Cambio Puebla, S.A. de
C.V., 763 N.Y.S.2d 434 (N.Y. Sup. Ct. 2003), and Vazquez v. Sund
Emba AB, 548 N.Y.S.2d 728 (N.Y. App. Div. 1989), for the
proposition that “[w]here a signatory state to the Hague
Convention does not object to service made pursuant to Article
10(c) . . . that service is valid.”

Pls.’ Resp., at 2.

Delgado

and Vasquez, however, are not federal cases, and for service in
this case to be proper, it must comply with the Federal Rules,
which were not a part of the decisional framework in Delgado and
Vasquez.
Rule 4(f)(1) requires service “by any internationally
agreed means of service . . . such as those authorized by the
Hague [Service] Convention.”

The forms of service mentioned in

Article 10 are not internationally agreed means of service
authorized by the Hague Service Convention.

See Brockmeyer v.

May, 383 F.3d 798, 803-04 (9th Cir. 2004) (“Article 10(a) does
not itself affirmatively authorize international mail service.
It merely provides that the Convention ‘shall not interfere
with’ the ‘freedom’ to use postal channels if the ‘State of
destination’ does not object to their use.”).

7

Rather, the means

of service authorized by the Hague Service Convention are: (1)
use of the State of destination’s Central Authority, as
authorized by Articles 3 through 6; (2) use of a contracting
State’s own diplomatic or consular agents, as authorized by
Article 8; and (3) use of “those authorities of another
contracting State which are designated by the latter for this
purpose,” as authorized by Article 9.

Thus, Rule 4(f)(1) plus

Article 10(c) plus personal delivery does not, as plaintiffs
would have it, add up to effective service.4
Indeed, in most cases in which federal courts have
determined that personal service on a foreign corporation was
effective under the Federal Rules, they have done so not under
Rule 4(f)(1), on which plaintiffs rely, but under Rule
4(f)(2)(A), which allows service “as prescribed by the foreign
country’s law for service in that country in an action in its
4

There is one case in which a court appears to have used
the same calculus on which plaintiffs rely, but the court in
that case did something plaintiffs here have not done: it
analyzed the rules of civil procedure of the State of
destination in the same way that courts analyze such rules when
assessing the effectiveness of service under Rule 4(f)(2)(A).
See Dimensional Commc’ns, Inc. v. OZ Optics Ltd., 218 F. Supp.
2d 653, 656 (D.N.J. 2002) (“Courts have also looked to the
internal service rules of the destination State to determine
whether that State would object to the particular method of
service utilized under Article 10.”) (citing Hunt’s Pier Assocs.
v. Conklin (In re Hunt’s Pier Assocs.), 156 B.R. 464, 470
(Bankr. E.D. Pa. 1993)).

8

Fed. R. Civ. P. 4(f)(2)(A).5

courts of general jurisdiction.”

For example, in Tow v. Rafizadeh (In re Cyrus II Partnership),
the district court, in reliance on Rule 4(f)(2)(A), denied the
defendant’s Rule 12(b)(5) motion to dismiss for insufficient
service of process because: (1) the plaintiff had made personal
service on a Hong Kong corporation; and (2) the law of Hong Kong
expressly permitted personal service on corporations.

See 392

B.R. 248, 259 (Bankr. S.D. Tex. 2008); see also Retractable
Techs., Inc. v. Occup’l & Med. Innovs., Ltd., 253 F.R.D. 404
(E.D. Tex. 2008) (denying defendant’s Rule 12(b)(5) motion where
defendant corporation was personally served in Australia and
Australian law permitted personal service on corporations).
As the Court of Appeals explained in Nuance Communications
v. Abbyy Software House, “a corporation can be served by
personal delivery under Rules 4(h)(2) and 4(f)(2)(A), provided
that personal delivery is prescribed by the foreign country’s
laws for service in that country in an action in its courts of
general jurisdiction,” 626 F.3d 1222, 1238 (Fed. Cir. 2010); see
also Retractable Techs., 253 F.R.D. at 405 (“Rule 4(f)(2)(A)

5

As the text of Rule 4(f)(2) makes clear, that rule applies
both in situations where “there is no internationally agreed
means,” or, in situations such as the one presented here, where
“an international agreement allows but does not specify” the
means at issue. See Cyrus II, 392 B.R. at 253.

9

allows personal service when foreign law specifically provides
for personal service.”).

Finally, and perhaps most tellingly,

in Cyrus II, where the court determined that personal service on
a foreign corporation was effective under Rule 4(f)(2)(A), the
court also said that Article 10 of the Hague Service Convention
– on which plaintiffs in this case rely – was irrelevant.
Based on the foregoing, the court concludes that the proper
vehicle for effective personal service on a foreign corporation
is Rule 4(f)(2)(A), not Rule 4(f)(1).

Because Rule 4(f)(2)(A)

only allows forms of service that are “prescribed by the foreign
country’s law for service in that country,” the opinions in
cases such as Cyrus II and Retractable Technologies devote
considerable attention to analyzing the laws of the foreign
countries in which service has been attempted.

See Cyrus II,

392 B.R. at 254-59; Retractable Techs., 253 F.R.D. at 406-07.
Even in Dimensional Communications, Inc. v. OZ Optics Ltd., in
which the court appears to have approved of personal service on
a foreign corporation under Rule 4(f)(1) and Article 10(c), the
court analyzed Canadian law in the context of its determination
that Canada did not object to personal service on corporations.
See 218 F. Supp. 2d 653, 656 (D.N.J. 2002).

10

Here, however, plaintiffs say nothing about the relevant
Pakistani law other than offering the following statement from
Ingalls’ declaration: “Service by a private server is not
prohibited by law in Pakistan.”

Ingalls Decl. ¶ 7.

Leaving

aside the distinction between the affirmative prescription
required by Rule 4(f)(2)(A) and the mere lack of a prohibition,
it is not at all clear that Ingalls’ observation addresses the
relevant question, which is what Pakistani law says about how
corporate defendants are to be served.

Moreover, because the

content of Pakistani law is, by definition, a question of law
rather than a factual matter, Ingalls’ declaration is not
particularly helpful.
In any event, even if it were inclined to do so, the court
could not treat plaintiffs’ argument for effective service as
being based on Rule 4(f)(2)(A), and then conduct the requisite
analysis.

Plaintiffs, who have the burden of proving effective

service, see Rivera-Lopez, 979 F.2d at 887, have cited no
Pakistani law, which leaves the court without any basis for
making a determination that the way in which plaintiffs
attempted to serve A-One was a means of service “prescribed by
[Pakistan]’s law for service in [Pakistan] in an action in
[Pakistan’s] courts of general jurisdiction,” Fed. R. Civ. P.

11

4(f)(2)(A).

And, even if Rule 4(f)(1) is applicable,

plaintiffs’ failure to cite the relevant Pakistani law leaves
the court unable to perform the kind of Article 10 analysis the
court performed in Dimensional Communications.
Based on the foregoing, plaintiffs’ case against A-One
stands on an awkward footing.

If their attempted service on A-

One was proper under the Federal Rules, then A-One has been
served in a timely manner and plaintiffs would be free to seek
relief based on A-One’s failure to appear.

But, as explained

above, plaintiffs have not provided an adequate legal basis to
support their argument that service was proper.

By the same

token, the court has no basis for affirmatively ruling that
service was defective.

That said, the question before the court

is whether plaintiffs have demonstrated timely service on A-One.
They have not.
Conclusion
For the reasons given, plaintiffs’ claims against A-One are
dismissed, for lack of timely service, but that dismissal is
without prejudice to filing a new claim against A-One and
effecting service in compliance with Pakistan’s “law for service

12

in [Pakistan] in an action in Pakistan]’s courts of general
jurisdiction.”

Fed. R. Civ. P. 4(f)(2)(A).

SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge

October 31, 2011
cc:

David P. Angueira, Esq.
Eric K. Blumenfeld, Esq.
Alan L. Cantor, Esq.
Joel Thomas Emlen, Esq.
Dona Feeney, Esq.
Bruce W. Felmly, Esq.
James C. Fitzpatrick, Esq.
D. Patterson Gloor, Esq.
Theodore V.H. Mayer, Esq.
Steven M. Shear, Esq.
Edard M. Swartz, Esq.
Jori L. Young, Esq.

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