Smith v. Wolf Performance Ammunition
2:13-cv-02223
D. Nev.Jan 23, 2015Background
- This personal-injury case arises from an April 7, 2012 alleged ammunition explosion; plaintiff sued in Nevada state court and the action was removed to federal court.
- Third-Party Plaintiff Sporting Supplies International (SSI) obtained leave to file a third-party complaint against Russian manufacturer Tula Cartridge Works and U.S. affiliate Tulammo USA, asserting indemnity and contribution claims.
- SSI attempted service and sent a waiver to Tula Cartridge Works in Russia but did not receive a signed waiver; Russia has suspended judicial cooperation with the U.S. for civil/commercial service since 2003.
- SSI moved for substitute service under Fed. R. Civ. P. 4(f)(3) by (1) international mail (first-class U.S. Mail International) and (2) e-mail to addresses listed on Tula’s website, and (3) service on Tulammo as the U.S. affiliate.
- Tulammo opposed, arguing SSI failed to show traditional service was impossible and that Tulammo is not Tula’s exclusive distributor or agent.
- The court considered Rule 4(f)(3) authority, Ninth Circuit precedent, and the U.S. State Department guidance about Russia’s refusal to execute Hague Convention service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court may authorize alternative service under Rule 4(f)(3) on a Russian corporate defendant | SSI: Court may order alternative service (mail and e-mail); need not prove traditional means impossible | Tulammo: SSI must show traditional service is impracticable; substitute service improper without that showing | Court: Granted substitute service under Rule 4(f)(3); no requirement to exhaust Hague methods; alternative service permitted |
| Whether service via international mail and e-mail comports with due process | SSI: Mail and e-mail, plus translated papers, reasonably calculated to notify Tula | Tulammo: Did not assert that those methods violate international law; argued insufficiency generally | Court: Found methods satisfy Mullane due-process standard; reasonably calculated to give notice |
| Whether service on Tulammo (U.S. affiliate) suffices as service on Tula Cartridge Works | SSI: Tulammo’s ongoing business relationship with Tula supports contact; proposed serving Tulammo in addition | Tulammo: Denied being Tula’s agent or exclusive distributor; argued service on it would be improper | Court: Did not permit service solely via Tulammo; ordered service directly on Tula by mail and e-mail (serving Tulammo not substituted for service on Tula) |
| Whether additional time to complete service should be granted under Rule 4(m) | SSI: Good cause shown based on attempts and international complications | Tulammo: Opposed based on service arguments | Court: Found good cause and extended service deadline to specified date |
Key Cases Cited
- Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (district court has discretion to order alternative service under Rule 4(f)(3); such service is not a last resort but must comport with due process)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (service must be reasonably calculated to inform interested parties and afford opportunity to be heard)
- Nuance Commc’ns, Inc. v. Abbyy Software House, 626 F.3d 1222 (Fed. Cir. 2010) (discussing Russia’s suspension of judicial cooperation with the U.S. and refusal to execute Hague Convention service)