1:11-cv-09505
S.D.N.Y.Jan 31, 2012Background
- Plaintiffs filed a complaint on December 23, 2011 asserting damages and equitable relief against US and foreign defendants.
- US defendants reside in the United States; foreign defendants reside in Germany and Switzerland (Hague signatories).
- Plaintiffs previously attempted service via Hague Convention and national procedures; sought to authorize international courier service via Rule 4(f)(3).
- Switzerland and Germany objected to service by postal channels; Hague Convention procedures are mandatory where applicable.
- Court denied alternative service under Rule 4(f)(3) but allowed renewal later; U.S. defendants must appear on Feb 7, 2012 for show-cause hearing and potential injunction; dates for filings set.
- Defendants Todaro, Chalder, Tarby, Advanced Engineering Technologies, Inc., and Byrd requested a pre-motion conference to discuss potential motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 4(f)(3) service is permissible. | Plaintiffs seek court-ordered international courier service. | Foreign states object to non-Hague methods; Hague procedures mandatory where applicable. | Denied; 4(f)(3) not allowed given objections and lack of proper notice; renewal possible later. |
| Whether Hague Convention procedures were properly required/used. | Service attempted under Hague procedures; relief sought due to delays. | Switzerland and Germany objected to alternative methods; service not properly effectuated. | Hague procedures mandatory; alternative service denied because of state objections. |
| Effect of service on U.S. defendants pending show-cause injunction. | U.S. defendants have been served; injunction against contacting Plaintiffs’ employees should be issued. | Proper service status and timing justify opposition to injunction; not yet fully determined. | U.S. defendants ordered to appear and show cause; opposition due by a specified deadline. |
Key Cases Cited
- Rio Props., L.P. v. Rio Int’l Partners, 284 F.3d 1007 (9th Cir. 2002) (4(f)(3) is one of several permissible methods for international service.)
- Burda Media, Inc. v. Viertel, 417 F.3d 292 (2d Cir. 2005) (Second Circuit recognizes multiple Hague alternatives; Article 10 in play.)
- Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986) (Service through postal mail contemplated under Hague Convention where permitted.)