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Hawkins v. Bank Of America, N.A.

United States District Court, S.D. California

April 4, 2018

FRED HAWKINS, Plaintiff,
BANK OF AMERICA, N.A., et al., Defendants.



         Pending before the Court is Plaintiff's ex parte motion for an order authorizing Plaintiff to use alternative methods to serve the Complaint and Summons on Defendant Beryl Hawkins (“Hawkins”). (ECF No. 14.) Plaintiff requests three alternative avenues: (1) mail service via FedEx pursuant to Federal Rule of Civil Procedure 4(f)(2)(C)(ii), (2) email service pursuant to Rule 4(f)(3), and (3) service on the office of Hawkins' local San Diego attorney pursuant to Rule 4(f)(3). Plaintiff represents that Defendant Bank of America, N.A. (“BOA”) does not intend to take a formal position on the ex parte motion. (Id.) Defendant BOA has not done so at the time of this Order. For the reasons herein, the Court grants in part and denies in part Plaintiff's ex parte request.

         I. BACKGROUND

         In this action, Plaintiff alleges that Defendant Beryl Hawkins, one of his adult daughters, transferred nearly $600, 000 of his life savings from Plaintiff's accounts with Defendant Bank of America, N.A to Hawkins' accounts. (ECF No. 1 ¶¶6-8.) Plaintiff alleges that Hawkins did so while she was in San Diego, California in fall 2016 and away from her residence in Tokyo, Japan. (Id. ¶6.) In the Complaint, Plaintiff stated his intent to serve Hawkins under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (“Hague Convention”) given her residence in Japan. (Id. ¶3.)

         After filing the Complaint, Plaintiff attempted to serve Hawkins at her residence in Japan pursuant to the Hague Convention. (ECF No. 14-2 (Declaration of Robert L. Hill (“Hill Decl.”)) ¶5.) Plaintiff paid $2, 500 to Viking Advocates, a third party consulting law firm which specializes in overseas service, to ensure proper translation of the documents from English to Japanese and to deliver the documents to Japan. (Id. ¶6.) The third party submitted a request for service abroad of judicial or extrajudicial documents to the Japanese Ministry of Foreign Affairs (the “Ministry”), which included both Japanese and English versions of the Summons and Complaint in this action. (Id., Ex. E (copy of request).) The documents were delivered to the Ministry on October 19, 2017. (Id., Ex. D (UPS delivery confirmation to Ministry).) Neither Plaintiff, Plaintiff's counsel, nor Viking Advocates has received any confirmation that the documents delivered to Japan over five months ago have been served on Hawkins. (Id. ¶7.) Counsel for Viking Advocates has unsuccessfully attempted to contact the Ministry to inquire about the status of the service attempt. (Id.) Plaintiff now moves to authorize an alternative method of service.


         A. Request for Mail Service Under Rule 4(f)(2)(C)(ii)

         Rule 4(f) permits service on an individual, other than a minor, an incompetent person, or a person whose waiver has been filed, at a place not within any judicial district of the United States, by one of three means. Of the methods Rule 4(f) permits, it “does not denote any hierarchy or preference of one method of service over another.” Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). Thus, a plaintiff may seek to use any one of the specified methods, as appropriate, to effectuate service on a defendant located abroad.

         Here, Plaintiff has unsuccessfully attempted service on Hawkins under the means specified by Rule 4(f)(1). Rule 4(f)(1) expressly addresses service pursuant to the Hague Convention. See Fed. R. Civ. P. 4(f)(1). Like the United States, Japan is a signatory to the Hague Convention. The Hague Convention requires signatory countries to establish a Central Authority to receive requests for service of documents from other countries and to serve those documents by methods compatible with the internal laws of the receiving state. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698-99 (1988). Service through a country's Central Authority is the principal means of service under the Hague Convention. Plaintiff indicates that he attempted service on Hawkins via the relevant Japanese authority, but to no avail. (Hill Decl. ¶¶6-7.)

         Because Plaintiff has been unable to effectuate service on Hawkins under Rule 4(f)(1), he requests that the Court permit mail service by FedEx under a second means, set forth in Rule 4(f)(2)(C)(ii), at his expense. Under Rule 4(f)(2)(C)(ii), “if there is no intentionally agreed means, or if an international agreement allows but does not specify other means” an individual may be served “unless prohibited by the foreign country's laws, by . . . using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” Fed.R.Civ.P. 4(f)(2)(C)(ii). Plaintiff points to the Hague Convention as the relevant international agreement for the purposes of this alternative method of service. (ECF No. 14-1 at 5-6.) Article 10 of the Hague Convention permits other forms of service, such as service “by postal channels” or through judicial officers, provided that the state of destination does not object. See Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (“Hague Convention”), [1969] 20 U.S.T. 361, T.I.A.S. No. 6638, 1969 WL 97765, Art. 10; see also United States Aviation Underwriters, Inc. v. Nabtesco Corp., No. C07-1221RSL, 2007 WL 3012612, at *1 (W.D. Wash. Oct. 11, 2007). Plaintiff has attached evidence that Japan does not object to sending judicial documents directly to person in their jurisdiction by postal channels, as specified in Article 10(a). (Hill Decl. ¶8, Ex. H.) Federal courts have repeatedly determined that Japan has not objected to mail service under Article 10(a) of the Hague Convention and, therefore, service on a defendant in Japan via postal channels is permissible. See Leon v. Cont'l AG, 176 F.Supp.3d 1315, 1319-20 (S.D. Fla. 2016) (resting determination in part on United States State Department's “express interpretation” of Japan's view of Article 10(a)); Levi Strauss & Co. v. Toyo Enter. Co., 665 F.Supp.2d 1084, 1094 (N.D. Cal. 2009) (“Japan has not stated any objection to Article 10(a)”) (citing Fireman's Fund Ins. Co. v. Fuji Elec. Sys. Co., Ltd., No. C-04-3627 MMC, 2005 WL 628034, at *3 (N.D. Cal. Mar. 17, 2005)); Nanya Tech. Corp. v. Fujitsu, Ltd., No. 06-00025, 2007 WL 269087, at *4 (D. Guam Jan.; 25, 2007) (noting that “[e]ven after a number of courts have upheld service by mail on Japanese parties, Japan has still apparently not objected to Article 10(a)”); Schiffer v. Mazda Motor Corp., 192 F.R.D. 335, 338-39 (N.D.Ga. 2000) (citing the report by the 1989 Special Commission on the operation of the Hague Convention, the Japanese delegation's statement to the Special Commission, and the United States Department of State's opinion explaining the statement of the Japanese delegation).

         Although federal courts have determined that service on a defendant located in Japan may be effectuated via international mail, one federal district court in the Ninth Circuit has determined that “it is undisputed that the law of Japan forbids service of process by Federal Express delivery.” Fireman's Fund Ins. Co., 2005 WL 628034, at *3 (finding service by FedEx on defendant located in Japan was forbidden by Japanese law based on declaration). After a review of the declaration on which the Fireman's Fund court relied, this Court is not persuaded that Japanese law affirmatively prohibits mail service by FedEx such that mail service under Rule 4(f)(2)(C)(ii) is unavailable to Plaintiff. A close review of the declaration shows that it does not identify any affirmative prohibition under Japanese law that prohibits mail service by FedEx in connection with foreign litigation. See Fireman's Fund Ins. Co. v. Fuji Elec. Sys. Co., Ltd., No. C-04-3627 MMC, ECF No. 11 ¶¶8-11.) Rather, the declaration refers to the tokubetsu sotatsu procedure for service of process in Japan for a litigation pending in Japan. Id. As another federal court concluded with respect to this procedure, “[w]hile there may be strict and formal procedures for effectuating service in Japan, it is of little consequence to this court's determination” regarding valid service for the purposes of litigation in the United States. Nanya Tech. Corp., 2007 WL 269087, at *4; see also Schiffer, 192 F.R.D. at 339 (“[I]t is possible, and even likely, that service in Japan by mail, which may be considered valid service by courts in the United States, would not be considered valid service in Japan for the purpose of Japanese law.” (quoting United States Department of State Opinion Regarding the Bankston Case and Service by Mail to Japan Under the Hague Service Convention, 30 I.L.M. 260, 261 (1991))). In the absence of evidence showing a prohibition on mail service by FedEx under Japanese law, the Court concludes that Plaintiff may attempt service on Hawkins via this method.

         In granting Plaintiff's request, the Court will modify Plaintiff's request to direct the Clerk of the Court to use United States postal service international express mail to effectuate service and send a copy of the relevant materials via FedEx. See Leon v. Cont'l AG, 176 F.Supp.3d 1315, 1320 (S.D. Fla. 2016) (directing clerk of the court to serve defendant located in Japan by United States postal service international express mail and by sending a copy of the complaint and summons sent via FedEx).

         B. Requests for Alternative Service Under Rule 4(f)(3)

         Plaintiff also requests a court order under Rule 4(f)(3) permitting email service on Hawkins and service on Hawkins' attorney located in the United States. In an abundance of caution, the Court considers whether any alternative ...

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