United States District Court, D. Arizona
Hydentra HLP INT. Limited, et al., Plaintiffs,
Sagan Limited, MXN Limited, Netmedia Services Incorporated, and David Koonar, Defendants.
G. CAMPBELL UNITED STATES DISTRICT JUDGE.
Hydentra HLP INT. Limited and Hydentra, L.P. HLP General
Partner, Inc. (“Hydentra” or
“Plaintiffs”) filed an ex parte motion
for alternative service on Defendants Sagan Limited, MXN
Limited (now known as “Cyberweb”), Netmedia
Services, Inc., and David Koonar. Doc. 12. Defendants
responded while specifically reserving their right to object
to personal jurisdiction once properly served. Doc. 15 at 2.
Plaintiffs replied. Doc. 18. No party has requested oral
argument. The Court will grant Plaintiffs' motion for
leave to conduct alternative service.
Rule of Civil Procedure 4(h)(2) authorizes service of process
on a foreign business entity in the manner prescribed by Rule
4(f) for individuals. Rule 4(f) provides three methods by
which a plaintiff may serve an international defendant:
(1) by an internationally agreed means of service that is
reasonably calculated to give notice, such as those
authorized by the Hague Convention on Service Abroad of
Judicial and Extra Judicial Documents;
(2) 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
* * *
(3) by other means not prohibited by international agreement,
as the court orders.
Fed. R. Civ. P. 4(f)(1)-(3).
under Rule 4(f)(3) must be (1) directed by the court and (2)
not prohibited by international agreement. Fed.R.Civ.P.
4(f)(3). “No other limitations are evident from the
text [of Rule 4(f)(3)]. In fact, as long as court-directed
and not prohibited by an international agreement, service of
process under Rule 4(f)(3) may be accomplished in
contravention of the laws of the foreign country.”
Rio Properties, Inc. v. Rio Int'l Interlink, 284
F.3d 1007, 1014 (9th Cir. 2002). Service of process under
Rule 4(f)(3) is neither a “last resort” nor
“extraordinary relief, ” but “is merely one
means among several which enables service of process on an
international defendant.” Id.
constitutional muster, a method of service must be
“reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and
afford them an opportunity to present their
objections.” Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950). Applying this
construction of Rule 4(f)(3) and the standard articulated in
Mullane, courts have authorized a wide variety of
alternative methods of service. See SEC v. Tome, 833
F.2d 1086, 1094 (2d Cir. 1987) (service of process by
publication); Int'l Controls Corp. v. Vesco, 593
F.2d 166, 176-78 (2d Cir. 1979) (service by mail to last
known address); New Eng. Merchs. Nat'l Bank v. Iran
Power Generation & Transmission Co., 495 F.Supp. 73,
80 (S.D.N.Y. 1980) (service by telex for Iranian defendants);
Levin v. Ruby Trading Corp., 248 F.Supp. 537, 541-44
(S.D.N.Y. 1965) (service by ordinary mail); Forum Fin.
Group, LLC v. President & Fellows of Harvard Coll.,
199 F.R.D. 22, 23-24 (D. Me. 2001) (service on
defendant's attorney); In re Int'l Telemedia
Assoc., 245 B.R. 713, 719-20 (Bankr. N.D.Ga. 2000)
(service by email).
request that the Court permit them to serve Defendants by
alternative means pursuant to Rule 4(f)(3). Doc. 12 at 1.
Plaintiffs allege that Defendants are a group of
inter-related business entities with actual notice of this
lawsuit. Id. In response, Defendants argue that
Plaintiffs should be required “to first attempt service
on the Defendants through the Hague Convention.” Doc.
15 at 4. Plaintiffs aver that “Service of Process has
been sent through the Hague, [but] service has not yet been
successful” (Doc. 12 at 2), and, “due to the
length of time to serve through the Hague, service could
continue unnecessary delay” (Doc. 18 at 4).
argue that they seek alternative service “[b]ased on
experience with the Defendants [and] their purposeful evading
of service, ” which has already resulted in this Court
granting leave for alternative service in another case
involving the same Defendants as parties and the same lawyer
as plaintiff's counsel. See AMA Multimedia, LLC v.
Sagan, Ltd., et. al., No. 2:16-cv-1269-PHX-DGC, Dkts.
22, 23, 26, 35. In that case, the Court granted leave for
alternative service on Defendant Koonar, where a qualified
process server appeared at his business location four times
only to be refused entry. Id. Likewise, the Court
granted leave for alternative service on Defendant
Cyberweb/MXN, LTD. after service through the Hague Convention