Ahkeo Labs LLC v. Plurimi Investment Managers LLP et al
Opinion & Order signed by Judge James S. Gwin on 6/26/17. The Court, for the reasons set forth in this order, grants plaintiff's motion for alternative service. The Court approves service of defendants' lawyers as laid out in plaintiff's proposed order. (Related Doc. #4 ) (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
AHKEO LABS LLC,
PLURIMI INVESTMENT MANAGERS :
LLP, et. al,
CASE NO. 1:17-CV-1248
OPINION & ORDER
[Resolving Doc. 4]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On June 14, 2017, Plaintiff Ahkeo Labs LLC sued Defendants Plurimi Investment
Managers LLP and Alexander Maximilian Dupee for breach of contract.1 Defendants reside in
London, United Kingdom2 but have counsel in the United States—Plurimi in Cleveland, Ohio
and Dupee in New York, New York.3
Before filing this law suit, Plaintiff negotiated with Defendants’ counsel and asked that
Defendants waive service.4 Defendants refused.5 Plaintiff then asked whether Defendants’
lawyers would accept formal service of the summons and complaint on their behalves.6
Defendants again refused.7
Plaintiff Ahkeo now moves this Court to approve an alternative method of service under
Federal Rule of Civil Procedure 4(f)(3).
Id. at 2.
Doc. 4 at 3-4.
For the reasons below, the Court GRANTS Plaintiff Ahkeo’s motion.
Rule 4(f) governs international service of process on foreign individuals, while Rule 4(h)
governs international service for businesses.8 Rule 4(h)(2) authorizes service on a foreign
business in “any manner prescribed by Rule 4(f) for serving an individual.”9
Rule 4(f) “provides three disjunctive methods for service abroad.”10 First, Rule 4(f)(1)
allows for service by “any internationally agreed means . . . that is reasonably calculated to give
notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents.”11 Second, Rule 4(f)(2) provides that “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.”12 Third, Rule 4(f)(3) permits service by
“other means not prohibited by international agreement, as the court orders.”13
“Based upon the plain language of Rule 4(f)(3), the only two requirements for service
under that Rule are that it must be (1) directed by the court, and (2) not prohibited by
international agreement.”14 Importantly, “courts have consistently found that there is not a
hierarchy among the subsections of Rule 4(f).”15 “[A] plaintiff is not required to first exhaust the
Fed. Rule Civ. P. 4(f), (h).
Id. at (h)(2).
Studio A Entm’t, Inc. v. Active Distributors, Inc., No. 1:06CV2496, 2008 WL 162785, at *2 (N.D. Ohio Jan. 15,
2008) (quoting Sibley v. Alcan, Inc., 400 F.Supp.2d 1051, 1055 n. 8 (N.D. Ohio 2005)).
Fed. Rule Civ. P. 4(f)(1).
Id. at (f)(2). The second method provides a variety of service methods, including “as prescribed by the foreign
country’s law for service in that country in an action in its courts of general jurisdiction; as the foreign authority
directs in response to a letter rogatory or letter of request; or unless prohibited by the foreign country’s law, by:
delivering a copy of the summons and of the complaint to the individual personally; or using any form of mail that
the clerk addresses and sends to the individual and that requires a signed receipt . . .” Id.
Id. at (f)(3).
Lexmark Int’l, Inc. v. Ink Techs. Printer Supplies, LLC, No. 1:10-CV-564, 2013 WL 12178588, at *2 (S.D. Ohio
Aug. 21, 2013) (citing Popular Enters., LLC v. Webcom Media Grp., Inc., 225 F.R.D. 560, 561 (E.D. Tenn. 2004)).
Id. (collecting cases).
methods contemplated by Rule 4(f)(1) and (2) before petitioning the Court for permission to use
alternative means under Rule 4(f)(3).”16
“While a plaintiff is not required to attempt service through the other provisions of Rule
4(f) before the Court may order service pursuant to Rule 4(f)(3), a district court may nonetheless
require parties to show that they have reasonably attempted to effectuate service on the
defendant, and that the circumstances are such that the district court’s intervention is
necessary.”17 The Court must also ensure that service “comport[s] with constitutional notions of
due process,” meaning it is “reasonably calculated, under all the circumstances, to apprize
interested parties of the pendency of the action and afford them an opportunity to present their
Plaintiff Ahkeo asks this Court to approve alternative service of process. Specifically,
Plaintiff seeks approval to serve Defendants’ lawyers here in the United States.
Resorting to an alternative means of service is appropriate. Plaintiff “reasonably
attempted to effective service” by first asking Defendants to waive service, and when Defendants
refused, by asking their lawyers to accept formal service of process on their behalves.19
Furthermore, Fed. Rule Civ. P 4(f)(3)’s requirements are satisfied. First, this Court will
direct Plaintiff to serve Defendants via their counsel here in the United States. Second, this
method is “not prohibited by international agreement.”20
Id. at *2 (citing Studio A Entm't, 2008 U.S. Dist. LEXIS 5883, at *6; Flava Works, Inc. v. Does 1-26, No. 12 C
5844, 2013 WL 1751468, at *7 (N.D. Ill. Apr. 19, 2013); Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015
(9th Cir. 2002)).
Fed. Trade Comm’n v. Repair All PC, LLC, No. 1:17 CV 869, 2017 WL 2362946, at *3 (N.D. Ohio May 31,
2017) (collecting cases).
Id. (citing Studio A Entm't, Inc., 2008 WL 162785, at *3).
Doc. 4 at 3-4.
Lexmark, 2013 WL 12178588, at *2 (citing Popular Enters., LLC, 225 F.R.D. at 561).
As a court in this district recently held, “the only transmittal to which the [Hague]
Convention applies is a transmittal abroad that is required as a necessary part of service.”21
Therefore, “[w]here service on a defendant’s domestic agent is valid and complete, the Hague
Convention does not apply.”22
Accordingly, serving Defendants’ lawyers in Cleveland and New York does not depend
upon the Hague Convention. Furthermore, this service method does not offend notions of due
process. Serving Defendants’ lawyers—who already know about this case and refused service on
their clients’ behalves—is “reasonably calculated, under all the circumstances, to apprize
interested parties of the pendency of the action.”
For the reasons above, the Court GRANTS Plaintiff’s motion for alternative service. The
Court approves service of Defendants’ lawyers as laid out in Plaintiff Ahkeo’s proposed order. 23
IT IS SO ORDERED.
Dated: June 26, 2017
James S. Gwin ___________
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dyer v. Can-Truck, Inc., No. 3:10 CV 1072, 2011 WL 2532871, at *2 (N.D. Ohio June 24, 2011) (citing
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707(1988)) (emphasis added in original).
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