Case Information
*1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK 1/8/2024 -----------------------------------------------------------------X FINGERMOTION, INC., 23-CV-9212 (JPC) (KHP)
Plaintiff, OPINION & ORDER ON MOTION -against- TO AMEND AND FOR ALTERNATE SERVICE CAPYBARA RESEARCH, et al., Defendants.
-----------------------------------------------------------------X
KATHARINE H. PARKER, United States Magistrate Judge:
Plaintiff seeks to amend the case caption to replace the “John Doe” Defendant with the true name of the defendant, Igor Appelboom, remove nominal defendаnt Wix.com, which was dismissed as a defendant, and add new defendant Accretive Capital LLC d/b/a Benzinga. The Court finds that the proposed amendments should be granted pursuant to the liberal stаndard for amending pleadings under Federal Rule of Civil Procedure 15. Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”). The case has just recently been filed and no answer from any defendant has been submitted. Moreover, one change merely clarifies the identity of a defendant, and another removes a defendant and constitutes a necessary correction to the caption. Thus, there is no prejudice to any defendant and the interests of justice are served by the amendment.
Plaintiff also seeks to serve defendant Appelboom by email and asks permission to do so under Federal Rule of Civil Procedure 4(f)(3). Appelboom lives in Brazil.
Rule 4(f) sets forth the procedure for serving an individual in a foreign country. It
permits service by one of three ways: 1) “any internationally agreed means of service that is
reasonably calculated to give notice” (e.g., via thе Hague Convention); 2) absent an
*2
internationally agreed means of service or when an international agreement allows but does
not specify other means, (a) methods allowed by the foreign jurisdiction for actions in its courts
of general jurisdiction; (b) methods directed by the foreign jurisdiction in response to a letter
rogatory or other written request; or (c) if allowed, (i) personal service or (ii) mail sent by an
authorized clerk with and requiring a signed receipt; or 3) other means not prohibited by
international agreement and ordered by the court. Fed. R. Civ. P. 4(f) (1-3). Rule 4(f)(1) “gives
effect to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.”
4B Charles A. Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice and Procedure
§ 1133 (4th еd. April 2020 update). Rule 4(f)(2) “provides options to the party serving process
when internationally agreed process methods are not intended to be exclusive or when no
internаtional agreement is applicable, as would be true, for example, when service is to be
made in a nation that is not a signatory to the Hague Convention.”
Id.
Rule 4(f)(3) “authorizes
the district court to approve other methods of service not prohibited by international
agreements.”
Id.
;
see also RSM Prod. Corp. v. Fridman
,
Effective June 1, 2019, Brazil agreed to the Hague Service Convention for serving process and other documents. See Hague Conference on Private Int’l Law, Brazil – Central Authority & practical information
https://www.hcch.net/en/states/authorities/details3/?aid=1113 (last visited January 8, 2024).
Plaintiff concedes that when agreeing to the Hague Convention, Brazil objected to Articles 8
and 10, which set forth additional methods of service of process (including service by
mail/postal service) on defendants residing in Brazil by plaintiffs from outside of Brazil.
Id.
*3
Brazil is also a signatory to the Inter-American Convention on Letters Rogatory, which also
governs service of process.
Wash. State Inv. Bd. v. Odebrecht S.A
.,
https://www.hcch.net/en/instruments/conventions/full-text/?cid=17 (last visited January 8, 2024); see also Florida Bar Journal, Serving Process in Brazil , https://www.floridabar.org/the- florida-bar-journal/serving-process-in-brazil-nascent-use-of-the-hague-convention-on-the- service-abroad-of-documents-in-civil-or-commercial-matters/#u6e20 (last visited January 8, 2024). Service of process usually takes between 9 and 18 months. See Hague Conference on Private Int’l Law, Brazil – Central Authority & practical information , supra .
Compliance with the Hague Convention is mandatory when the defendant resides in a
country that is a signatory to the convention.
Volkswagenwerk Aktiengesellschaft v. Schlunk
In
Smart Study
, the court assumеd that the Hague Convention permits service by email
but, because China, a signatory to the Hague Convention, has objected to service by postal
channels, service by emаil is not permitted in China under the Hague Convention.
Id
. at 1394.
It disagreed with other courts within the Second Circuit finding that a Hague-member country’s
objection to service by postal channels doеs not preclude service by email.
Id
. at 1396
(disagreeing with
Sulzer Mixpac AG v. Medenstar Indus. Co
.,
Other courts have taken a middle approach, allowing service by email or other non-
postal service means to a Hague Convention-signatory country that objects to service by mail if
the plaintiff demonstrates that it has made reasonable efforts to serve through the country’s
central authority but encountered extraordinary delay or found that such efforts were futile to
effectuate service and provided the method of service proposed accords with due process.
See,
e.g.
,
Montano v. Herrera
,
The Court need not determine whether service by email is permitted in Brazil at this time, because Plaintiff has not made an effort to serve Appelboom through Brazil’s Central Authority. While the Court recognizes there may be some delay in service through this method, the current website indicates that the time could be as short as nine months. See Hague Conference on Private International Law, Brazil – Central Authority & practical information *6 supra . Further, the time may be shorter if Appelboom waives service and agrees to service by email.
Plaintiff must first attempt to obtain Appelboom’s waiver of service (which can be requеsted by email) and service through Brazil’s Central Authority before requesting approval for alternative means of service. This is consistent with what this Court did with defendant Capybara Research. Accordingly, the request to serve Appelboom by email is denied without prejudice.
CONCLUSION The motion at ECF No. 15 is granted in part and denied in part. It is hereby: ORDERED that the Clerk amend the captiоn to replace the Doe Defendants with the true name of the Defendant, Igor Appelboom. It is further
ORDERED that the Clerk amend the caption to reflect the dismissal with prejudice of Nominal Defendant Wix.com, Ltd. It is further
ORDERED that Plaintiff is permitted to file its First Amended Complaint to add claims arising out of the same facts and circumstances alleged in the Complaint (ECF No. 1) against а new defendant, Accretive Capital LLC d/b/a Benzinga. It is further
ORDERED that Plaintiff shall file the amended complaint by January 16, 2024. Plaintiff is directed to serve this order, and a copy of the amended complaint on the Defendants.
SO ORDERED.
DATED: New York, New York
January 8, 2024 ______________________________ KATHARINE H. PARKER United States Magistrate Judge