285 F.R.D. 262
S.D.N.Y.2012Background
- United States seeks alternative service on LCB, Ellissa, and Ayash and letters rogatory to Lebanon, Togo, and Benin in an in rem civil forfeiture action.
- Defendants are Lebanese Lebanon-based entities (LCB, Ellissa, Ayash) and Togolese/Beninese entities (Salhab, Marco, Nomeco) connected to the case.
- Hague Service Convention does not apply as Lebanon, Togo, and Benin are not parties to it; service attempts occurred by delivery to foreign addresses and counsel.
- So far, LCB, Ayash, and Ellissa engaged through counsel; Salhab, Marco did not file claims; Nomeco filed a successful delivery.
- The government moved for Rule 4(f)(3) alternative service and letters rogatory; LCB opposed only the alternative service; others did not respond.
- Court grants both alternative service and letters rogatory to expedite proceedings and minimize asset restraints.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 4(f)(3) alternative service is appropriate. | Government: necessary given non-Hague states; reasonable efforts. | LCB: restricted appearance blocks using in rem counsel for in personam service. | Yes; court grants alternative service. |
| Whether Supplemental Rule E(8) restricts service via in rem counsel in civil forfeiture. | Government: E(8) not applicable to civil forfeiture actions. | LCB: E(8) precludes such service via restricted appearance. | E(8) does not apply here; service permitted. |
| Whether service by delivery to United States counsel satisfies due process. | Government: defendants are aware and represented; authority to proceed. | LCB: not persuasive; restricted appearance issues persist. | Yes; due process satisfied. |
| Whether letters rogatory should be issued to Lebanon, Togo, and Benin. | Government: expedites service where Hague Convention not available. | Ellissa and Ayash did not object; not disputed. | Yes; letters rogatory ordered. |
Key Cases Cited
- Rio Props, v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (4(f)(3) is a discretionary, proper means of service on foreign defendants)
- Ventura Packers, Inc. v. F/V Jeanine Kathleen, 424 F.3d 852 (9th Cir. 2005) (distinguishes admiralty restricted appearances from civil forfeiture contexts)
- Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106 (S.D.N.Y. 2010) (courts exercise discretion for international service under Rule 4(f)(3))