UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 20, 2009
CALIFORNIA BOARD SPORTS, INC., PLAINTIFF,
G.H. DIJKMANS BEHEER B.V., DEFENDANT.
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR LEAVE TO SERVE BY ALTERNATIVE MEANS
In this trademark action Plaintiff filed an Ex Parte Application for an Order Authorizing Alternate Service of Process on Defendant ("Application"). Plaintiff, a California corporation, is requesting leave to serve Defendant, a Netherlands corporation, by e-mail and mail at Defendant's counsel's address in Missouri. Defendant filed an opposition and Plaintiff replied. For the reasons which follow, the Application is DENIED.
On August 26, 2009 Plaintiff filed a complaint in this court. Subsequently it entered into settlement negotiations with Defendant through its counsel in Missouri. When it became apparent that the dispute would not settle, on September 17, 2009 Plaintiff informed Defendant's counsel of the pending complaint and asked him to accept service on Defendant's behalf. The counsel declined. On September 29, 2009 Defendant filed a trademark infringement complaint against Plaintiff in the federal court in Missouri and served Plaintiff in California. On October 6, 2009 Plaintiff, in an attempt to serve Defendant, sent via United States Postal Service by international registered mail the Summons and Complaint to Defendant's agent for service of process and its trademark counsel in the Netherlands. Plaintiff does not expect to receive the return receipt from the Netherlands for "up to several months." On October 8, 2009 Plaintiff filed the pending Application to obtain leave to serve Defendant's counsel in Missouri so as to ensure that its first-filed complaint would also be the first-served and the case would proceed in this District rather than in Missouri.
Federal 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, except for personal delivery. Rule 4(f)(3) permits service "by means not prohibited by international agreement, as the court orders." The parties agree that the Netherlands is a signatory to the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents ("Hague Convention"). "A federal court would be prohibited from issuing a Rule 4(f)(3) order in contravention of an international agreement, including the Hague Convention, referenced in Rule 4(f)(1)." Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 n.4 (9th Cir. 2002). The Hague Convention neither provides for nor prohibits service as requested by Plaintiff. (See Art. 1-14.)
If the means of service is not prohibited by the applicable international agreement or federal law, "service of process under Rule 4(f)(3) is neither a 'last resort' nor 'extraordinary relief.' It is merely one means among several which enables service of process on an international defendant." Id. at 1015 (internal citations omitted). In deciding whether service should proceed under Rule 4(f)(3) as opposed to 4(f)(1) or (2), the court must determine whether "the particularities and necessities of a given case require alternate service of process under Rule 4(f)(3)." Id. at 1016. Specifically, the moving party must demonstrate "that the facts and circumstances of the . . . case necessitate the district court's intervention." Id.
In Rio Properties, after diligent efforts, the plaintiff was unable to serve the defendant, a Costa Rican entity, either at its address in the United States or in Costa Rica. Id. at 1012, 1013, 1016. Because the international defendant was "elusive" and "striving to evade service of process, the district court properly exercised its discretionary powers to craft alternate means of service," including serving the defendant's counsel in the United States. Id. at 1016.
In this case, Plaintiff argues that the court's intervention, i.e., an order permitting service on Defendant's counsel in Missouri, is necessary because Plaintiff's October 6, 2009 service by*fn1 may be too slow to defeat Defendant's efforts to litigate this dispute in Missouri. This was in large part caused by Plaintiff's decision to delay the start of its efforts to serve from August 26, 2009 until October 6, 2009.
Based on the foregoing, the facts and circumstances of this case do not necessitate the court's intervention in the service of process. Accordingly, Plaintiff's Application is DENIED.
IT IS SO ORDERED.