BP Products North America, Inc. v. Dagra

236 F.R.D. 270, 65 Fed. R. Serv. 3d 611, 2006 U.S. Dist. LEXIS 38100, 2006 WL 1624559
CourtDistrict Court, E.D. Virginia
DecidedMay 31, 2006
DocketNo. CIV.A. 3:04CV445-HEH
StatusPublished
Cited by17 cases

This text of 236 F.R.D. 270 (BP Products North America, Inc. v. Dagra) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BP Products North America, Inc. v. Dagra, 236 F.R.D. 270, 65 Fed. R. Serv. 3d 611, 2006 U.S. Dist. LEXIS 38100, 2006 WL 1624559 (E.D. Va. 2006).

Opinion

MEMORANDUM OPINION

HUDSON, District Judge.

THIS MATTER is before the Court on Plaintiff BP Products North America, Inc.’s (“Plaintiff’) Motion for Approval of Alternative Service. Plaintiff moves, pursuant to Federal Rule of Civil Procedure 4(f)(3), to serve Defendant Owais Dagra (“Defendant”), who is believed to reside in Pakistan, through publication in two Pakistani newspapers. To date, there has been no response filed. The court will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court. For the following reasons, Plaintiffs motion is granted.

I. Background

Defendant is a businessman who previously owned several businesses in Virginia, but is believed currently to reside somewhere in Pakistan. In this case, Plaintiff seeks to enforce the Defendant’s personal guarantee of over $12 million in defaulted business loans. After extensive efforts over the past two years, Plaintiff has only been able to learn that Defendant may be residing somewhere in Karachi, Pakistan.

As noted in previous opinions in this case, the Court has no doubt that the Defendant is willfully evading the service of process. Both the United States and Pakistan are signatories to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 20 U.S.T. 361 (the “Hague Convention”). Plaintiff has made numerous attempts to serve Defendant under the terms of the Hague Convention, but Plaintiffs efforts have failed to reveal Defendant’s current whereabouts. The Hague Convention does not apply in cases where the address of the foreign party to be served is unknown. 20 U.S.T. 361 (U.S.T.1969). Therefore, Plaintiff, with permission of this Court, attempted alternative service on Defendant’s local attorney who was representing Defendant on another matter. All of these attempts were to no avail, and Plaintiff is seeking the Court’s assistance. Through this Motion for Alternative Service pursuant to Rule 4(f)(3), Plaintiff seeks entry of an Order approving alternative service upon the Defendant by publication of the notice in two Pakistani newspapers circulated in Defendant’s last-known location.

II. Discussion

Rule 4(f) governs service of process upon individuals in foreign countries and provides three mechanisms of service:

(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or
(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice: ... or
(3) by other means not prohibited by international agreement as may be directed by the court.

Fed.R.Civ.P. 4(f). Since the Hague Convention does not apply when a defendant’s address is unknown and the attempts at service have been futile, the third method under 4(f)(3) is applicable. In this case, Plaintiff requests that the Court order alternative service by publication of notice in two Pakistani newspapers circulated in Defendant’s last-known location.

The Court is afforded wide discretion in ordering service of process under Rule 4(f)(3), which “provides the Court with ... flexibility and discretion ... empowering courts to fit the manner of service utilized to the facts and circumstances of the particular ease.” In re International Telemedia Assoc., Inc., 245 B.R. 713, 719 (Bankr.N.D.Ga.2000)(granting Rule 4(f)(3) motion approving service to defendant’s last-known email address). When exercising that discretion courts “should indeed make ‘an [272]*272earnest effort ... to devise a method of communication that is consistent with due process and minimizes offense to foreign law.’” Export-Import Bank of the United States v. Asia Pulp and Paper Co., 2005 WL 1123755, 2005 U.S. Dist. LEXIS 8902 (S.D.N.Y.2005)(quoting Fed.R.Civ.P. 4, advisory committee’s note, 1993 amendment). In order to fulfill due process requirements under Rule 4(f)(3), the Court must approve a method of service that is “reasonably calculated, under all the circumstances” to give notice to defendant. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950).

Federal courts have recognized the validity of service by publication where other means have failed. “Where the plaintiff can show that deliberate avoidance and obstruction by the defendant! has] made the giving of notice impossible, statutes and case law have allowed substitute notice by mail and by publication in media of general and wide circulation.” S.E.C. v. Tome, 833 F.2d 1086, 1092 (2d Cir.1987). See, Standard Oil Co. v. New Jersey, 341 U.S. 428, 71 S.Ct. 822, 95 L.Ed. 1078 (1951); Miller v. Tony & Susan Alamo Found., 924 F.2d 143 (8th Cir.1991); Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145 (10th Cir.1985); Senior Loiza Corp. v. Vento Development Corp., 760 F.2d 20 (1st Cir.1985). Service by publication for a defendant in a foreign country when his exact whereabouts are unknown has also been recognized. As noted by Plaintiff in its Memorandum in Support of Plaintiff’s Motion, the Second Circuit upheld service of process by publication to defendants in a foreign country under the predecessor to Rule 4(f)(3) in S.E.C. v. Tome, 833 F.2d 1086 (2d Cir.1987). The court noted the difficulties the S.E.C. had in serving process on the defendants and held that publication of the complaint and summons in the International Herald Tribune was an appropriate alternative means. Id. at 1091-93. The court stressed that the case was high-profile and would be known by members of the securities industry, such as the defendants. Id. at 1093. The court distinguished the case from those “cases where notice was published in a small regional newspaper or the advertisement contained nothing which would draw a party’s attention to it.” Id.

The court in Blum v. Koch, 716 F.Supp. 754 (S.D.N.Y.1989), noted the holding in S.E.C. v. Tome and distinguished the facts in the case before it. The court asserted that the city’s out-of-state scofflaw program under which plaintiff lost his vehicle was not well-publicized as the S.E.C. investigation in Tome had been, and there was only a single mailed request to determine his identity, unlike the thorough investigation in Tome. Id.

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236 F.R.D. 270, 65 Fed. R. Serv. 3d 611, 2006 U.S. Dist. LEXIS 38100, 2006 WL 1624559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bp-products-north-america-inc-v-dagra-vaed-2006.