FingerMotion, Inc. v. Capybara Research
1:23-cv-09212
S.D.N.Y.Jan 8, 2024Background
- Plaintiff Fingermotion, Inc. moved to amend its complaint to (1) replace "John Doe" with Igor Appelboom, (2) remove Wix.com (previously dismissed), and (3) add Accretive Capital LLC d/b/a Benzinga as a new defendant.
- The amendments were sought early in the litigation, before any defendant had answered.
- Plaintiff requested leave to serve Appelboom, who resides in Brazil, by email under Federal Rule of Civil Procedure 4(f)(3).
- Brazil, as a signatory to the Hague Service Convention, only permits service via its Central Authority and objects to service by postal channels (including email).
- Plaintiff had already obtained Appelboom's address via subpoena to Wix.com, so the provisions of the Hague Convention apply.
- The plaintiff had not attempted either a waiver of service or service through Brazil’s Central Authority before seeking permission to use email service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Amendment of Complaint and Case Caption | Amendments are routine, early in the case, no prejudice. | N/A | Granted; amendment is allowed under Rule 15 standard. |
| Service of Process on Appelboom in Brazil by Email | Hague Convention should not prevent email service; process via Central Authority is slow. | N/A | Denied without prejudice; Hague Convention requires first attempt through Central Authority. |
Key Cases Cited
- Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (compliance with Hague Convention is mandatory if defendant's address is known in signatory country)
- Water Splash, Inc. v. Menon, 581 U.S. 271 (Hague Convention preempts inconsistent methods of service)