Opinion
CASE NO. C19-0070JLR
03-25-2019
SEABOAT NAVIGATION US, INC., Plaintiff, v. TURISMOS HIELOS ANTARTICOS, LTDA, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR LETTERS ROGATORY AND ALTERNATIVE SERVICE OF PROCESS
I. INTRODUCTION
Before the court is Plaintiff Seaboat Navigation US, Inc.'s ("Seaboat") motion seeking (1) the court's signature and seal on a USM-272 form permitting Seaboat to serve Defendant Turismos Hielos Antarticos, Ltda. ("Hielos") under the method set forth by the Inter-American Convention on Letter's Rogatory and Additional Protocol ("IACAP"), Jan. 30, 1975, S. TREATY DOC. No. 27, 98th Cong. 2d Sess. (1984), reprinted following 28 U.S.C. § 1781; and (2) an order under Federal Rule of Civil Procedure 4(f)(3) directing service of process upon Hielos by the United States Post Office international mail. (Mot. (Dkt. # 4).) The court has considered the motion, the relevant portions of the record, and the applicable law. Being fully advised, the court GRANTS in part and DENIES in part the motion. Specifically, the court signs and seals the completed USM-272 form provided by Seaboat, but declines to order service of process under Rule 4(f)(3). See Fed. R. Civ. P. 4(f)(3). Instead, the court DIRECTS the Clerk to perform service as provided in Rule 4(f)(2)(A)(ii). See id. 4(f)(2)(A)(ii).
II. BACKGROUND
In its complaint, Seaboat alleges that Hielos breached a contract for the sale of a vessel. (See generally Compl. (Dkt. # 1).) Seaboat alleges that Hielos failed to deliver the vessel after Seaboat paid $164,167.86 towards the purchase price. (See generally id.) Hielos is a Chilean company with its principal place of business in Peurto Williams, Chile. (Id. ¶ 5.) Seaboat seeks permission to serve Hielos (1) pursuant to the IACAP, and (2) by an order pursuant to Rule 4(f)(3) directing service via the United States Post Office international mail. (Mot. at 2.)
III. ANALYSIS
A. Service Pursuant to the IACAP
The United States Department of State, Bureau of Consular Affairs summaries IACAP as follows:
The Inter-American Convention on Letters Rogatory and Additional Protocol (IACAP) are a pair of international agreements designed to facilitate judicial assistance between countries. The United States interprets those agreements as limited to covering service of process and countries must be a party to both agreements in order for a treaty relationship to exist. Replacing
the traditional letters rogatory process, the IACAP provides a mechanism for service of documents by a foreign central authority. The Department of Justice is the U.S. Central Authority under the IACAP. Requests from the United States are transmitted via a private contractor carrying out the service functions of the U.S. Central Authority on behalf of the Department of Justice.See https://travel.state.gov/content/travel/en/legal/travel4egal-considerations/internl-judicial-asst/Service-of-Process/Inter-American-Service-Convention-Additional-Protocol.html (last visited Mar. 22, 2019). Both the United States and Chile are signatories of IACAP. See id. The USM-272 form, which Seaboat attaches to its motion (Mot. Ex. A (Dkt. # 4-1)), is the official form necessary to effectuate service under IACAP, as set forth in the Additional Protocol. See Office of Int'l Judicial Assistance, U.S. Dep't of Justice, Guidance on Service Abroad in U.S. Litigation (last updated Oct. 1, 2018) at 5-7.
Available at: https://www.justice.gov/civil/page/file/1064896/download ("As a general rule it may take from 6 months to a year for a request to be executed.") (last visited Mar. 22, 2019).
Seaboat requests the court sign and seal the USM-272 form "so that it may be sent to ABC Legal (U.S. Central Authority contractor) for transmittal to the Chilean Central Authority, who will effectuate service upon [Helios] under the IACAP." (Mot. at 3.) Article 3 of the Additional Protocol, reprinted following 28 U.S.C. § 1781, states that:
Letters rogatory shall be accompanied by the following:
a. Copy of the complaint or pleading that initiated the action in which the letter rogatory was issued, as well as a translation thereof into the language of the State of destination;
b. Untranslated copy of the documents attached to the complaint or pleading;
c. Untranslated copy of any rulings ordering issuance of the letter rogatory;Soc. Enter, LLC v. Sociedad Agricola Cato S.A., No. 15-CV-4158 (RJD), 2015 WL 13743436, at *1-2 (E.D.N.Y. Oct. 6, 2015) (quoting IACAP, Additional Protocol, art. 3). As Seaboat correctly points out, "[t]he process prescribed by the IACAP for service of process through a foreign central authority cannot begin without the court's signature and seal on the USM-272 [f]orm." (Mot. at 3.) Accordingly, the court GRANTS this portion of Seaboat's motion, and hereby signs and affixes the seal of the court to Seaboat's USM-272 form, attached hereto.
d. Form conforming to Form B annexed to this Protocol and containing essential information for the person to be served or the authority to receive the documents; and
e. Certificate conforming to Form C annexed to this Protocol on which the Central Authority of the State of destination shall attest to execution or non-execution of the letter rogatory.
The copies shall be regarded as authenticated for the purposes of Article 8(a) of the Convention if they bear the seal of the judicial or other adjudicatory authority that issued the letter rogatory.
Article 8(a) of the IACAP states, "Letters rogatory shall be accompanied by the following documents to be delivered to the person on whom process, summons or subpoena is being served: a. An authenticated copy of the complaint with its supporting documents, and of other exhibits or rulings that serve as the basis for the measure requested . . . ." IACAP, art. 8(a).
B. Alternative Service
Seaboat also seeks an order pursuant to Rule 4(f)(3) directing service by the United States Post Office international mail. (Mot. at 3-5); see Fed. R. Civ. P. 4(f)(3). Seaboat seeks this additional means of service on the ground that service under IACAP is time-consuming and may take up to six months to a year for a request to be executed. (See id. at 3 (citing https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/Service-of-Process/Inter-American-Service-Convention-Additional-Protocol.html (last visited Mar. 22, 2019) ("As a general rule it may take from 6 months to a year for a request to be executed.").)
Rule 4(h)(2) governs service upon a corporation, partnership, or association outside the United States. See Fed. R. Civ. P. 4(h)(2). This Rule, in turn, incorporates by reference most methods prescribed in Rule 4(f) for serving an individual in a foreign country. See id. Under Rule 4(f)(1), service may be affected "by any internationally agreed means of service that is reasonably calculated to give notice . . . ." Id. 4(f)(1). "While service by letters rogatory under [the] IACAP would be one such acceptable means, it is 'neither mandatory nor exclusive,' even where, as here, both parties reside in signatory states." Soc. Enter. LLC, 2015 WL 13743436, at *2 (citing Mayatextil, S.A. v. Liztex U.S.A., Inc., No. 92 Civ. 4528(SS), 1994 WL 198696, at *5 (S.D.N.Y. May 19, 1994) (Sotomayor, D.J.)); see also Liberty Media Holdings, LLC v. Vinigay.com, No. CV-11-0280-PHX-LOA, 2011 WL 810250, at *4 (D. Ariz. Mar. 3, 2011) ("[T]he IAC[AP] only regulates the transmittal of documents abroad and does not 'supplant all alternative methods of service.'") (quoting Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 640 (5th Cir.1990)).
In this case, where "an international agreement allows but does not specify other means [of service]," service may be effected on a party in a foreign country "by a method that is reasonably calculated to give notice . . . using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt[,]" unless that method is "prohibited by the foreign country's law[.]" Fed. R. Civ. P. 4(f)(2)(C)(ii). "Courts interpreting this Rule have concluded that 'prohibited' in this context means that the foreign country's law expressly prohibits the method, not merely that it does not recognize or provide for it." Soc. Enter. LLC, 2015 WL 13743436, at *3 (citing cases). "As such, service via signed receipt Federal Express mail upon a party in Chile, where 'reasonably calculated to give notice,' is permissible under Rule 4(f)(2)(C)(ii)." Id. (quoting Fed. R. Civ. P. 4(f)(2)(C)(ii) and citing IntelliGender, LLC v. Soriano, No. 2:10-CV-125-JRG, 2012 WL 215066, at *2 (E.D. Tex. Jan. 24, 2012) (overruling challenge to sufficiency of service by signed receipt Federal Express mail in Chile)).
Nevertheless, Seaboat seeks an order pursuant to Rule 4(f)(3) directing service of process on Hielos by United States Post Office international mail. (Mot. at 3-5.) Rule 4(f)(3) authorizes service "by other means not prohibited by international agreement, as the court orders." Fed. R. Civ. P. 4(f)(3). The Ninth Circuit has held Rule 4(f) does not "create a hierarchy or preferred methods of service of process," and "court-directed service under Rule 4(f)(3) is as favored as service under Rule 4(f)(1) or Rule 4(f)(2)." Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002) (footnote omitted). Thus, service under Rule 4(f)(3) is "neither a 'last resort' nor 'extraordinary relief.'" Id. (citing Forum Fin. Grp., LLC v. President, Fellows of Harvard Coll., 199 F.R.D. 22, 23 (D. Me. 2001)). Nevertheless, even if facially permitted by Rule 4(f)(3), the method of service selected must also comport with constitutional notions of due process. Id. at 1016. To meet this requirement, the method of service must be "reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. at 1016-17 (citing Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)).
Considering all the relevant circumstances, the court finds that the most appropriate course of action is to request the Clerk of the court to effect service by international Federal Express, return receipt, under Rule 4(f)(2)(C)(ii), rather than issue an order pursuant to Rule 4(f)(3). "Such service would be efficient, appropriate under the Rules, and reasonably certain to apprise [Hielos] of the pendency of this action." Soc. Enter. LLC, 2015 WL 13743436, at *3 (citing Rio Properties, Inc., 284 F.3d at 1017). Accordingly, the court DENIES the portion of Seaboat's motion seeking an order directing service of process under Rule 4(f)(3), and instead the court ORDERS an alternative method of service of process under Rule 4(f)(2)(C)(ii). If Seaboat is unable to obtain service of process within a reasonable period of time under either of the methods directed under this order, Seaboat may file another motion seeking relief under Rule 4(f)(3).
IV. CONCLUSION
The court GRANTS in part and DENIES in part Seaboat's motion (Dkt. # 4). The court GRANTS Seaboat's request for service of process via IACAP, and hereby signs and affixes the seal of the court to Seaboat's USM-272 form, attached hereto. The court DENIES Seaboat's request for alternative service under Rule 4(f)(3). Instead, the court DIRECTS the Clerk to effect service under Rule 4(f)(2)(C)(ii) via international Federal Express, return receipt, to Hielos. In order to accomplish such service, the court ORDERS Seaboat to provide the Clerk with Spanish translations of the complaint and summons, along with an appropriate label from Federal Express international, return receipt, directed to Hielos in Puerto Williams, Chile, within seven (7) days of the date of this order. Upon receipt, the court DIRECTS the Clerk to send the aforementioned documents, with copies of the complaint (Dkt. # 1) and summons (Dkt. # 3), as well as a copy of this order, via Federal Express international, return receipt, to Hielos in Puerto Williams, Chile.
Dated this 25th day of March, 2019.
/s/_________
JAMES L. ROBART
United States District Judge
Exhibit A
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