United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's motion for alternative
service. (Doc 9). Specifically, Plaintiff
“served” Defendant in Japan via FedEx and cited a
number of courts that have held that Japan has not objected
to service by mail under the Hague Convention. (Doc. 9 at 4).
Plaintiff then states that Defendant has “actual
notice” of the lawsuit. (Doc. 9 at 5). Plaintiff also
asks the Court to order Defendant to answer by February 1,
2019; 21 days after the FedEx was delivered. (Doc. 9 at 1).
Plaintiff does not address whether service by alternative
means can be executed before the Court permits
service by alternative means.
“responds” and opposes service by alternative
means. Defendant's “response” was filed by
counsel who claims that they could not waive service when
asked because they had not been retained in this case. (Doc.
11 at 4). Defendant's counsel goes on to state they have
now been retained and implies Defendant might now agree to
waive service but only if it is “afforded a reasonable
time to respond to the Complaint, recognizing the time
required for service under the Hague Convention and the time
periods contemplated by Federal Rule of Civil Procedure
4(d).” (Doc. 11 at 4). To summarize, Defendant has not
agreed to waive service and seems to imply it will only do so
if it receives a significant extension of time in exchange
for waiving. This position is at best questionable under
Federal Rule of Civil Procedural 4(d)(1).
the propriety of Defendant's “response” is
questionable. Defendant's counsel who filed the response
has not entered a notice of appearance in this case as
required by Local Rule Civil 83.3(a). Further, when
Defendant's counsel filed the “response” they
did not link themselves to their client; therefore, for
purposes of the record, the client was unrepresented and no
one was receiving electronic notices for
Defendant.The Court is unclear whether this was a
mistake by defense counsel or an intentional maneuver to
continue to be able to dispute the status of representation
in this case.
turning to the substance of the motion, Defendant states that
at some unidentified point in time (presumably after all the
cases Plaintiff cited had been decided), Japan objected to
service by mail under the Hague Convention. (Doc. 11 at 3)
(“By delivering the Complaint to Omron in Japan by
Federal Express on January 11, 2019, IceMOS did not effect
formal service of process under the Federal Rules of Civil
Procedure. This is because, before the Complaint was even
sent, Japan had objected to Hague Convention Article
10(a).”) Unhelpfully, Defendant cites nothing
for this proposition.
unhelpfully, Plaintiff seemingly abandons the service by mail
argument in the Reply. (Doc. 12). Now Plaintiff focuses on
service on counsel in the United States being a proper form
of service for a Japanese Defendant. (Doc. 12 at 1).
Unfortunately, that is not the alternative service requested
in the motion itself. Plaintiff also reiterates that there
has been actual notice, but cites no case or rule
specifically authorizing alternative service by “actual
notice.” (Doc. 12).
to summarize the state of this case, Defendant has retained
counsel, but they have not appeared. The request for
alternative service by mail seems to have been abandoned. No
other form of alternative service was specifically sought in
the motion; as a result, the motion will be denied.
Plaintiff must proceed with service. The Court is unpersuaded
by Defendant's suggestion that Plaintiff must “meet
and confer” with Defendant to negotiate with Defendant
on waiving service; nonetheless, Plaintiff may again attempt
service by waiver.(See Doc. 11 at 5). If Plaintiff
does not secure service by waiver, Plaintiff shall serve
under the full procedures of the Hague Convention by April
30, 2019 (without prejudice to Plaintiff seeking more time if
Plaintiff can show that it has been diligently pursuing
service). If Plaintiff again attempts service by waiver, and
Defendant again refuses to waive service, Plaintiff may move
for all fees and costs associated with service under the
on the foregoing, IT IS ORDERED that the
Motion for Alternative Service (Doc. 9) is denied. The
deadline for service by waiver is April 2, 2019; the deadline
for service under the Hague Convention is April 30, 2019.
IS FURTHER ORDERED that the motion for leave to file
a sur-reply (Doc. 13) is denied.
 Plaintiff's counsel appears to not
appreciate this reality because the proof of service on the
Reply (Doc. 12) says Plaintiff served opposing counsel using
the Court's electronic filing system, then lists two
attorneys. But because no one has actually appeared for
Defendant, no one was served by this Court's electronic
 The deadline for service by waiver
shall be that set by Federal Rule of Civil Procedure 4(m). If
Defendant waives service, the response to the complaint shall
be due within 60 days of when the second waiver is sent, or
within 90 days of when ...