Social Enterprise LLC v. Sociedad Agricola Cato S.A.

Filing 8

MEMORANDUM AND ORDER denying without prejudice 6 Motion for Issuance of Letters Rogatory; denying 7 Motion to Serve Process Under Federal R. Civ. P. 4(f)(3). For the reasons stated in the attached opinion, plaintiff's motions are denied without prejudice. Ordered by Magistrate Judge Roanne L. Mann on 9/2/2015.(Williams, Jennifer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SOCIAL ENTERPRISE LLC,
Plaintiff,
-against-

MEMORANDUM
AND ORDER
15-CV-4158 (RJD)

SOCIEDAD AGRICOLA CATO S.A.,
Defendant.
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ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE:
Currently pending before this Court are motions filed by plaintiff Social Enterprise
LLC d/b/a Fair Trade Interrupcion (“plaintiff”) for appointment of a special process server
and permission to serve process on defendant Sociedad Agricola Cato S.A. (“defendant”) in
Chile by U.S. post office international mail. See Motion for Issuance of Letters Rogatory
(Sept. 1, 2015) (“Pl. Letter”), Electronic Case Filing Docket Entry (“DE”) #6; Motion to
Serve Process Under Federal R. Civ. P. 4(f)(3) (Sept. 1, 2015), DE #7. For the reasons that
follow, plaintiff’s motions are denied without prejudice.
Plaintiff seeks permission to serve defendant, “a corporation domiciled in Chile,” by
two methods: (1) pursuant to the Inter-American Convention on Letters Rogatory (the
“Convention”), Jan. 30, 1975, S. TREATY DOC. No. 27, 98th Cong., 2d Sess. (1984),
reprinted following 28 U.S.C. § 1781, whose signatories include the United States and Chile1;
and (2) by United States Post Office international mail. See Pl. Letter at 1. Plaintiff

1

Chile is not a party to the Hague Service Convention, 20 U.S.T. 361.

complains that compliance with the procedures prescribed in the Convention is likely to take
eight months or longer, and that “[s]uch delay is undesirable for both parties.” See id.
Plaintiff therefore asks the Court to authorize “an expedited method” -- to wit, simultaneous
service by international mail. Id.
As a preliminary matter, the Court notes that plaintiff errs in relying exclusively on
Rule 4(f)(3) of the Federal Rules of Civil Procedure, which allows service of process on “an
Individual in a Foreign Country . . . by other means not prohibited by international agreement,
as the court orders.” Fed. R. Civ. P. 4(f)(3) (emphasis added). Since defendant is an entity,
the applicable provision is Rule 4(h)(2), which governs service upon a corporation, partnership
or association outside the United States. See Fed. R. Civ. P. 4(h)(2) (incorporating by
reference most methods of service prescribed in Rule 4(f)); Advanced Aerofoil Techs., AG v.
Todaro, No. 11 Civ. 9505 (ALC)(DCF), 2012 WL 299959, at *1 (S.D.N.Y. Jan. 31, 2012).
In any event, even overlooking that error, plaintiff’s showing in support of its request
to circumvent the terms of the applicable treaty is woefully deficient. Courts have discretion
under Rule 4 to authorize alternative means of service “not prohibited by international
agreement . . . .” Fed. R. Civ. P. 4(f)(3). Plaintiff’s application does not, however, address
whether service of process via postal channels in Chile is a permissible method of service.
Instead, plaintiff simply implies, without more, that the method of international service
specified in the governing treaty is not exclusive, see Pl. Letter at 1 (stating that the
Convention “outlines the ‘formal’ method of international service between parties of those

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countries”), and describes that method as likely to cause delays of at least eight months, see
id.2 Nevertheless, absent a showing by plaintiff that Chile allows service of process by
international mail,3 the Court is without discretion to authorize such service. See generally
Balk v. N.Y. Institute of Tech., 974 F.Supp.2d 147, 160 (E.D.N.Y. 2013) (declining
plaintiff’s proposal to serve subpoena via registered mail in Egypt and requiring service of
process in accordance with Hague Service Convention); Advanced Aerofoil, 2012 WL 299959,
at *2 (denying motion for alternative service and observing that “district courts cannot
circumvent the Hague Convention at whim and authorize alternative

2

Rather than proffering caselaw or evidentiary materials, plaintiff cites a comment appearing
on the website of the United States Department of State that discusses letters rogatory
generally, not service of process in Chile; that comment is accompanied by a disclaimer that
the information contained therein “may not be totally accurate in a particular case[,]” that
“[q]uestions involving interpretation of specific foreign laws should be addressed to foreign
attorneys[,]” and that “[t]he U.S. Department of State does not intend by the contents of this
circular to take a position on any aspect of any pending litigation.” See Legal Considerations
– International Judicial Assistance, http://travel.state.gov/content/travel/english/legalconsiderations/judicial/service-of-process.html (last visited Sept. 2, 2015).
3

Plaintiff does not reference another portion of the same State Department website, which sets
forth the following information with respect to Chile:
Party to Hague Service Convention? No
Party to Hague Evidence Convention? No
Party to Hague Apostille Convention? No
Party to Inter-American Convention? Yes
Service of Process by Mail? No
Legal Considerations – International Judicial Assistance,
http://travel.state.gov/content/travel/english/legal-considerations/judicial/country/chile.html
(last visited Sept. 2, 2015) (emphasis added).
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service when the foreign state has affirmatively objected to the type of service requested”).
Plaintiff’s motions are therefore denied without prejudice.
SO ORDERED.
Dated:

Brooklyn, New York
September 2, 2015

Roanne L. Mann

/s/
ROANNE L. MANN
UNITED STATES MAGISTRATE JUDGE

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