Opinion
Case No. 2:03-CV-00753 PGC
December 1, 2003
ORDER GRANTING MOTION FOR ALTERNATE SERVICE
This case is before the court on plaintiff Timpanogos Wireless Consulting, Inc.'s ("Timpanogos") motion for alternative service (#24-1) under Rule 4(f)(3) of the Federal Rules of Civil Procedure. Defendant 3IC, Inc. ("3IC"), appearing specially, opposes the motion. The court has determined that oral argument would not materially assist the court in reaching its decision. Having reviewed the pleadings and the relevant law, the court GRANTS plaintiffs motion and directs that service on 3IC be effected by mail directed to 3IC's United States Counsel of record, Townsend and Townsend and Crew L.L.P. ("Townsend"), in the litigation between 3IC and Cisco pending in the Northern District of California, San Jose Division (the "Cisco Litigation").
3IC, Inc. v. Cisco Systems, Inc., Civil no. CO 1-20802 JF ARB (N.D.Cal.).
It is not clear whether an order for alternate service by domestic mail pursuant to Rule 4(f)(3) would implicate the Hague convention since the plaintiff would not be required to transmit documents for service abroad under the court's order. Assuming the Hague convention applies, neither it nor any other international agreement expressly forbids such service by mail in this case; therefore, Rule 4(f)(3) service is appropriate, especially where, as here, there appears to be unusual urgency as evidenced by plaintiffs early motions for a temporary restraining order and preliminary injunction. Rule 4(f)(3) "is merely one means among several which enables service of process on an international defendant."
Rio Properties, Inc. V. Rio Int'l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002).
Furthermore, the court finds that service of the summons and complaint by mail on Townsend, 3IC's counsel in the Cisco litigation, comports with constitutional notions of due process. Such method is "reasonably calculated . . . to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." While the court recognizes defendant's right to appear specially to challenge jurisdiction and sufficiency of process, such special appearance by private Salt Lake City counsel is at least some evidence that 3IC may be already reasonably apprised of the pendency of this action or that it can quickly become so apprised through its counsel in the Cisco litigation.
MulIane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314 (1950).
Based on the foregoing, plaintiffs motion to effect alternate service under Rule 4(f)(3) is GRANTED. Plaintiff is directed to effect service in this case by mailing the summons and complaint, together with this order on Gregory S. Bishop and Townsend counsel representing 3IC in the Cisco litigation.
SO ORDERED.