Midmark Corporation v. Janak Healthcare Private Limited et al

Filing 39

ENTRY and ORDER denying Motion for Service via Alternative Means. Doc. 28. Signed by Judge Thomas M Rose on May 1, 2014. (jab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MIDMARK CORPORATION,
Petitioner,

:
:

v.

:

CASE NO. 3:14-cv-088

JANAK HEALTHCARE PRIVATE
LIMITED, et al.,

:

Judge Thomas J. Rose

:
Respondents.
:

____________________________________________________________________________
ENTRY AND ORDER DENYING MOTION OF PETITIONER MIDMARK
CORPORATION FOR LEAVE TO SERVE RESPONDENTS VIA ALTERNATIVE
MEANS. DOC. 28.
____________________________________________________________________________

Pending before the Court is Motion of Petitioner Midmark Corporation for Leave to
Serve Respondents Via Alternative Means. Doc. 28. Plaintiff moves the Court, pursuant to
Federal Rule of Civil Procedure 4(f)(3) and the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Hague
Convention,” Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163.) for permission to perfect service
via email.
Rulings on motions for alternative service of process under Federal Rule of Civil
Procedure 4(f)(3) are conferred to the discretion of the Court, since “the plain language of the
rule stipulates that a district court ‘may’ direct alternative means of service.” Prewitt Enter., Inc.

v. Organization of Petroleum Exporting Countries, 353 F.3d 916, 921 (11th Cir. 2003); C & F
Systems, LLC v. Limpimax, S.A., 2010 WL 65200, *1 -3 (W.D. Mich. 2010). A district court, in
exercising the discretionary power permitted by Rule 4(f)(3), may require the plaintiff to show
that they have “reasonably attempted to effectuate service on defendant and that the
circumstances are such that the district court's intervention is necessary to obviate the need to
undertake methods of service that are unduly burdensome or that are untried but likely futile.”
FMAC Loan Receivables v. Dagra, 228 F.R.D. 531, 534 (E.D. Va. 2005) (quoting Ryan v.
Brunswick, 2002 WL 1628933, at * 2 (W.D.N.Y. 2002)).
When serving a foreign defendant, the first method of service, and the one to be preferred
in most cases, is service pursuant to an internationally agreed means, such as those authorized by
the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. Fed. R.
Civ. P. 4(f)(1). The Hague Convention is the exclusive method of effecting service between
signatories to the convention. Kreimerman v. Casa Veerkamp S.A. de C.V., 22 F.3d 634, 643-44
(5th Cir. 1994).
Article 15 of the Convention “provide[s] that alternative methods of service may be used
if a Central Authority does not respond within six months to the originator of the request for
service.” Harper v. W.W. Grainger, Inc., 2013 WL 2470751, *3 (W.D. Ky. 2013)(quoting 4B
Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1133 (3d ed. 2002)).
The Hague Convention provides for several alternate methods of service: (1) service through the
Central Authority of member states; (2) service through consular channels; (3) service by mail if
the receiving state does not object; and (4) service pursuant to the internal laws of the state.
Burda Media, Inc. v. Viertel, 417 F.3d 292, 300 (2d Cir. 2005). India has objected to the
provision for service by mail, Article 10. India's Declarations and Reservations to the Hague
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Convention (“India's Hague Service Convention Reservations”), available at http://
www.hcch.net/index_en .php?act=status.comment & csid=984 & disp=resdn (last visited April
29, 2014).
Even if service by alternative means is appropriate under the Convention, service must
still satisfy due process under the Constitution of the United States. Lexmark Intern., Inc. v. Ink
Technologies Printer Supplies, LLC, 295 F.R.D. 259, 261 (S.D. Ohio 2013)(citing Fed. R. Civ.
P. 4, Advisory Committee Note to Subdivision (f)(3) (“Inasmuch as our Constitution requires
that reasonable notice be given, an earnest effort should be made to devise a method of
communication that is consistent with due process and minimizes offense to foreign law.”)).
Federal Rule of Civil Procedure 4(f)(3), under which Petitioners have moved the Court,
“serves as a safety valve for unanticipated situations ....” 4B Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 1133 at 313 (3d ed. 2002). “Rule 4(f)(3) is most likely to
be employed when a foreign country's Central Authority fails to effect service within the sixmonth period provided by the Hague Convention or refuses to serve a complaint based on its
own public policy or substantive law limitations.” Id. at 313-14. Consequently, the better view is
that Rule 4(f)(3) should be viewed as a “final effort to make service when other means have
failed.” Marcantonio v. Primorsk Shipping Corp., 206 F. Supp. 2d 54, 58 (D. Mass. 2002).
Therefore, even if other methods of obtaining service of process are technically allowed,
principles of comity encourage the court to insist, as a matter of discretion, that a plaintiff
attempt to follow foreign law in its efforts to secure service of process upon defendant. See
Tucker v. Interarms, 186 F.R.D. 450, 452-53 (N.D. Ohio 1999). Time has not proven the Indian
Central Authority dilatory, moreover, Defendants, while not expediting consideration of the

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instant matter by waiving service, have not exhibited the behavior found in some of the cases
cited by Petitioner.
Even if the Court were to find that the six-month temporal requirement for service by
alternative means had been satisfied, it must still resolve the question of whether service by
email satisfies United States Constitutional concerns. In Rio Properties, Inc. v. Rio International
Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002), the Ninth Circuit upheld the district court's
authorization of e-mail service because the plaintiff's investigation showed that the defendant did
not maintain a physical office but, instead, maintained a website and designated its undisputed email address as its preferred means of communication.

Rio Properties cautions courts to

“balance the limitations of email service against its benefits in any particular case.” 284 F.3d at
1018.
The advisory committee's notes to Rule 4 of the Federal Rules of Civil Procedure state
that “[u]se of the [Hague Service] Convention procedures, when available, is mandatory if
documents must be transmitted abroad to effect service.” Fed. R. Civ. P. 4 advisory committee's
note to 1993 Amendments. If such procedures fail, a litigant may serve a foreign entity in
compliance with a court order allowing service “by other methods of service not prohibited by
international agreements.” Fed. R. Civ. P. 4 advisory committee's note to 1993 Amendments; see
also Burda Media, 417 F.3d at 301 (noting that “the Hague Convention should be read together
with Rule 4”); Gurung v. Malhotra, 279 F.R.D. 215, 218–19 (S.D.N.Y. 2011) (finding use of
court-ordered alternative means of service under Rule 4(f)(3) sufficient).
Plaintiff relies primarily upon Lexmark International, Inc. v. Ink Technologies Printer
Supplies, LLC, 295 F.R.D. 259 (S.D. Ohio 2013)(Barrett, J.) and F.T.C. v. PCCare247 Inc., 2013

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WL 841037 (S.D.N.Y. 2013), for the proposition that a plaintiff need not exhaust or even attempt
service through other provisions of Rule 4(f) before resorting to section 4(f)(3). Both of these
cases belong to a line of cases that trace back to Rio Properties, Inc. v. Rio International
Interlink, 284 F.3d 1007 (9th Cir. 2002).
The Northern District of California has distinguished Rio Properties, however, noting
that in Rio Properties, plaintiffs had no other address for defendants than an email address.
More importantly, Rio Properties involved service in a country that is not a member of the
Hague Convention, thereby eliminating the obligation the plaintiff would have had to show that
email service in the country was permissible under the convention. Agha v. Jacobs, 2008 WL
2051061, *1 n.1 (N.D. Cal. 2008). Magistrate Judge Seeborg continued to note that many of the
cases allowing service by email involve foreign countries that either were not members of Hague
Convention, or if they were, had not exercised their rights under Article 10 of that Convention to
object to service through “postal channels.” Id.
Plaintiff’s position is contrary to the plain language of Rule 4(f). Indeed, the official
commentary warns that Petitioners should beware “displeasing the foreign country with the
manner of service used may prompt it to withhold enforcement of the judgment later.” 28 U.S.C.
R. 4, Commentary 4-24. The Comment urges "a service method that will propitiate the nation
involved.” Id.
While Plaintiff points to Lexmark International, Inc. v. Ink Technologies Printer
Supplies, LLC, 295 F.R.D. 259 as a case allowing service by email to countries that objected to
article 10, Lexmark involved a case that was three years old, well past the six-month threshold.
The instant case is not three years old, but several weeks old. Similarly, F.T.C. v. PCCare247

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Inc., 2013 WL 841037 (S.D.N.Y. 2013), while allowing service by email to India, is a case
where three months had passed before plaintiff requested permission to serve by email, and six
months elapsed prior to the court permitting it. While e-mail service may be appropriate in some
cases, e.g., when as in Rio Properties the plaintiff is “faced with an international e-business
scofflaw, playing hide-and-seek with the federal court,” 284 F.3d at 1018, Plaintiffs have made
no showing that this is such a case. In this case, Defendants are merely standing on their right to
formal service of process.
Concern for comity and respect for the legal system of India, notably the Mumbai
Company Law Board, and for the treaty obligations of the United States of America are foremost
in the Court’s mind. Simply put, the Court has stomped around enough in the Company Law
Board’s garden, and wishes to leave some of the crop. Service by alternative means prior to
allowing the Central Authority of India an opportunity to serve Defendants, especially in light of
the respect the Company Law Board has afforded the rulings of this Court, is not warranted at
this juncture.
Motion of Petitioner Midmark Corporation for Leave to Serve Respondents Via
Alternative Means, doc. 28, is DENIED WITHOUT PREJUDICE TO REFILING.
Done and ordered this Thursday, May 01, 2014.
s/Thomas M. Rose
HON. THOMAS J. ROSE
UNITED STATES DISTRICT JUDGE

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