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LLC v. Singh

United States District Court, D. Minnesota

January 7, 2019

Patrick's Restaurant, LLC, Plaintiff,
Sujit Kumar Singh, Defendant.


          Eric C. Tostrud United States District Judge

         Defendant Sujit Kumar Singh (“Singh”), a citizen and resident of India, appeals from Magistrate Judge Katherine Menendez's order authorizing alternative service via email pursuant to Fed.R.Civ.P. 4(f)(3), which allows “an individual in a foreign country” to be served “by other means not prohibited by international agreement, as the court orders.” For the past nine months, plaintiff Patrick's Restaurant, LLC (“Patrick's”) has been unable to serve Singh in India under the Hague Convention. But Singh is well aware of the pending action, as evidenced by his lawyer's appearance in the case for the limited purpose of arguing the propriety of alternative service. Because the plain text of Rule 4(f)(3) does not require exhaustion of service under the Hague Convention, and email service is not inconsistent with the Hague Convention or with due process, Judge Menendez's order will be affirmed.


         Review of a magistrate judge's ruling on a nondispositive order, including an order for alternative service, is “extremely deferential.” Scott v. United States, 552 F.Supp.2d 917, 919 (D. Minn. 2008). A ruling will be modified or set aside only if it “is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). “A ruling is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed. A decision is contrary to law when a court fails to apply or misapplies relevant statutes, case law or rules of procedure.” Smith v. Bradley Pizza, Inc., 314 F.Supp.3d 1017, 1026 (D. Minn. 2018) (citations and internal quotation marks omitted).


         Singh objects to Judge Menendez's order on several grounds, which can be consolidated into two questions on appeal: (1) Must a party exhaust Hague Convention procedures before pursuing alternative service under Rule 4(f)(3)? (2) Is email service preempted or precluded by the Hague Convention?[1]


         Relying primarily on Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002), Judge Menendez determined that “Patrick's Restaurant is not required to exhaust the Hague Convention procedures”-whatever “exhaustion” means to Singh, which is not altogether clear-“before pursuing service via an alternative means.” ECF No. 17 (“Order”) at 2; see Rio Props., 284 F.3d at 1015 (holding that Rule 4(f)(3) is not a “last resort” (quoting Forum Fin. Grp., LLC v. President & Fellows of Harvard Coll., 199 F.R.D. 22, 23 (D. Me. 2001))).

         As Judge Menendez aptly noted, nothing in the plain language of Rule 4(f) suggests that a party must exhaust the Hague Convention before pursuing alternative service under Rule 4(f)(3). Order at 2-3. Rule 4 offers three alternatives in the disjunctive, and the third is for service “by other means not prohibited by international agreement, as the court orders.” Fed.R.Civ.P. 4(f)(3); see also Smith v. Gnassingbe, No. 07-cv-4167 (ADM/JJK), 2009 WL 3300037, at *9 (D. Minn. Oct. 13, 2009) (referring to these as “several options for service”); In re LDK Solar Secs. Litig., No. C-07-05182, 2008 WL 2415186, at *2 (N.D. Cal. June 12, 2008) (“[Rule] 4(f)(3) stands independently of [Rule] 4(f)(1); it is not necessary for plaintiffs to first attempt service through ‘internationally agreed means' before turning to ‘any other means not prohibited by international agreement.'”). Had the drafters of Rule 4(f)(3) wanted to constrain its applicability, they easily could have provided a qualifying clause such as “If service under Rule (f)(1) or (f)(2) fails…” The fact that they did not must mean something. See Rio Props., 284 F.3d at 1015 (“[C]ertainly Rule 4(f)(3) includes no qualifiers or limitations . . . .”).[2]

         Nor does the Hague Convention contain any exhaustion requirement. In fact, Article 15 contemplates that courts may enter default judgment after six months if Hague Convention methods have not resulted in successful service. See Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Convention”), art. 15, Nov. 15, 1965, 20 U.S.T. 361 (allowing for default judgment so long as “the document was transmitted by one of the methods provided for in this Convention, ” at least “six months . . . ha[ve] elapsed since the date of the transmission, ” and “every reasonable effort has been made to obtain [a certificate of service] through the competent authorities of the State addressed”). Read together with the preamble of the Hague Convention, which proclaims the signatories' intent to ensure prompt service, alternative service under Rule 4(f)(3) is entirely consistent with the plain language and purpose of the Hague Convention. See Hague Convention pmbl. (providing that “[t]he States signatory to the present Convention . . . [d]esir[e] to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time” and “expedit[e] the procedure” for service abroad (emphasis added)).

         Moreover, it is difficult to say when a party has “exhausted” Hague Convention service. Must a party pursue waivers of service before seeking alternative service, as Patrick's did here? How many times does Patrick's have to attempt service via the Hague Convention? And how frequently must Patrick's follow up with India's Central Authority? The difficulty of drawing a line between attempts that add up to exhaustion and those that do not is another reason not to read an exhaustion requirement into the text of Rule 4(f)(3) and the Hague Convention. Cf. Millbrook v. U.S., 569 U.S. 50, 57 (2013) (declining “to read such a limitation into unambiguous text” where Congress did not elect to “further narrow the scope of the proviso”).


         Singh raises his two other objections in the alternative: First, he argues that under Water Splash, Inc. v. Menon, 137 S.Ct. 1504 (2017), the Hague Convention method of service is mandatory and “precludes alternative methods of service not authorized by the Convention.” Def.'s Obj. at 2. Second, he seems to argue that even if alternative nonauthorized methods are permissible in general, email service is impermissible because India has objected to service by postal channels under Article 10 of the Hague Convention. See Id. at 4-5 (“India's blanket objection to alternative methods of service in Article 10 should be construed as precluding other methods of service from being adopted as a creative end run around Article 10's prohibition on service of judicial documents via mail . . . .”). Neither objection justifies reversal of Judge Menendez's order.

         First, Singh argues that one of the Supreme Court's “central holdings” in Water Splash, characterized by Judge Menendez as β€œnon-authoritative dicta, ” Order at 3, was that β€œ[t]he Hague Service Convention specifies certain approved methods of service and pre-empts inconsistent methods of service wherever it applies, ” Def.'s Obj. at 2 (citation and internal quotation marks omitted). Singh seems to be arguing that email service is preempted as ...

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