U.S. Commodity Futures Trading Commission v. Aliaga
272 F.R.D. 617
S.D. Fla.2011Background
- CFTC seeks alternative service under FRCP 4(f)(3) and 4(h)(2) on Defendants CMA and C. Aliaga and relief defendant B. Aliaga.
- Attempts at service by U.S. Marshals at last known/alternate addresses failed; addresses appear invalid or abandoned.
- CMA registered agent is C. Aliaga in the Dominican Republic; CMA has no known U.S. officers for service.
- CFTC provided email addresses allegedly used by C. Aliaga to contact CMA customers; no response obtained.
- Counsel of record for Defendants did not authorize accepting service; counsel’s status and relationship to Defendants are unclear.
- Evidence suggests C. Aliaga and B. Aliaga reside in the Dominican Republic; DR is not a signatory to major service treaties questioned here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 4(f)(3) allows email/local counsel service on defendants. | CFTC contends email to addresses used by CMA customers and service on CMA local counsel satisfy notice. | Defendants did not oppose the motion; Rosenthal conflicts and lack of waiver impede service. | Yes for Defendants via email and local counsel. |
| Whether service on defendants via email and local counsel complies with due process. | Efforts show reasonable notice given the defendants' location and contact history. | No direct contact or confirmation of residence; due process not satisfied. | Complies for Defendants. |
| Whether relief defendant Betty Aliaga can be served via alternative means. | Wife, no counsel, regular contact presumed; service should be feasible. | No evidence of residence or communication with husband; not reasonably calculated. | Denied for Betty Aliaga. |
Key Cases Cited
- Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (court-approved 4(f)(3) discretion and due process considerations for alternative service)
- TracFone Wireless, Inc. v. Distelec Distribuciones Electronicas, S.A., 268 F.R.D. 687 (S.D. Fla. 2010) (permits service by Fed-Ex and to U.S. attorney; alternative service standards)
- In re Potash Antitrust Litig., 667 F. Supp. 2d 907 (N.D. Ill. 2009) (directing substituted service on U.S. attorneys for foreign defendants)