Burst v. M/V Xing Xi Hai

• Court: District Court, M.D. Louisiana
• Decided: February 23, 2021
• Docket: 3:20-cv-00374
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

RALPH BURST CIVIL ACTION

VERSUS NO. 20-374-JWD-SDJ

M/V XING XI HAI, et al.,

ORDER

Before the Court is Plaintiff’s Motion/Request for Service Abroad of Judicial or Extrajudicial Documents Pursuant to the Additional Protocol to the Inter-American Convention on Letters Rogatory (R. Doc. 18). Although an actual Motion was not filed, the Court presumes that Plaintiff seeks an order directing the Clerk of Court to sign and seal Plaintiff’s filing—a Request for Service Abroad Pursuant to the Additional Protocol to the Inter-American Convention on Letters Rogatory (R. Doc. 18)—so that he may serve Sunshine Nautical, S.A., a Defendant located in Panama. But as explained below, Plaintiff has not provided all the information required of a party wishing to perfect service abroad under the Inter-American Convention and its Additional Protocol (IACAP). For that reason, IT IS ORDERED that Plaintiff’s Request (R. Doc. 18) is DENIED without prejudice to correct the errors outlined below and refile within 14 days of this Order. Rule 4(f)(1) permits service on a party in a foreign country pursuant to any “internationally agreed means of service.” Relevant here, both the United States and Panama are signatories to the Inter-American Convention on Letters Rogatory and its Additional Protocol (IACAP)1 — a pair of international agreements: [D]esigned to facilitate judicial assistance between countries . . . . covering service of process . . . . Replacing the traditional letters rogatory process, the IACAP provides a mechanism for service of documents by a foreign central authority. The Department of Justice is the U.S. Central Authority under the IACAP. Requests from the United States are transmitted via a private contractor carrying out the service functions of the U.S. Central Authority on behalf of the Department of Justice.

Seaboat Navigation US, Inc. v. Turismos Hielos Antarticos, Ltda, 2019 WL 1324882, at *1–2 (W.D. Wash. Mar. 25, 2019); Lozano v. Bosdet, 693 F.3d 485, 488 (5th Cir. 2012) (IACAP is an ‘internationally agreed means of service’). To perfect foreign service under the IACAP, the serving party must first complete the official Forms (Forms A, B and C)2 set forth in the Additional Protocol and present them to the Clerk of Court for signature and seal.3 See OFFICE OF INT'L JUDICIAL ASSISTANCE, U.S. DEP'T OF JUSTICE, Guidance on Service Abroad in U.S. Litigation (last updated Oct, 1, 2018).4 While Plaintiff has completed the requisite Forms, which are currently before the Court (Request, R. Doc. 18), the following errors prevent the Court from granting Plaintiff’s Request (R. Doc. 18): Form A, Box 1: The wrong docket number is listed. (R. Doc. 18 at 1).

1 Inter-American Convention on Letters Rogatory, Jan. 30, 1975, 28 U.S.C. § 1781, 1438 U.N.T.S. 287; Additional Protocol (IACAP), May 8, 1979, 28 U.S.C. § 1781, 1438 U.N.T.S. 332.

2 Forms A, B and C are typically combined in a single document referred to as a ‘Request for Service Abroad of Judicial or Extrajudicial Documents Pursuant to the Additional Protocol to the Inter-American Convention on Letters Rogatory’— i.e., the document filed by Plaintiff (R. Doc. 18).

3 Only Form A and Form B are to be signed and sealed by the Clerk of the presiding court.

4 Available at: https://www.justice.gov/civil/page/file/1064896/download and https://www.justice.gov/civil/service- requests. Form A, Box 3: ABC Legal is the correct name of the company contracted by the United States’ Central Authority—DOJ’s Office of International Judicial Assistance—and should therefore be named, instead of Process Forwarding International.5 (R. Doc. 18 at 1). Form A, Box 5: No address is provided for the requesting party. (R. Doc. 18 at 1).

Form B: Form B does not appear to contain all the required information— e.g., a description of the cause of action—and if it does, that information is not clearly discernable. (R. Doc. 18 at 4-6). Because Form B is meant to provide essential information in perfecting service, Plaintiff’s refiled Request must clearly include all the information required in Form B. Part III: Plaintiff’s list of attachments does not include all the documents required. (R. Doc. 18 at 7).6 Article 5(b) of the Inter-American Convention and article 3 of the IACAP require Plaintiff to provide

translated versions of certain documents. Plaintiff’s list, however, does not include translated versions of any documents.7 Plaintiff’s refiled Request must satisfy the Court that he has complied with the documentation requirements.

5 Process Forwarding International has changed its name to ABC Legal, according to the Department of Justice’s Office of International Judicial Assistance. See OFFICE OF INT'L JUDICIAL ASSISTANCE, U.S. DEP'T OF JUSTICE, Guidance on Service Abroad in U.S. Litigation (last updated Oct, 1, 2018).

6 Under article 3 of the IACAP, Plaintiff must attach the current complaint, any exhibits to the complaint, the summons, and any applicable orders.

7 Plaintiff also confusingly lists the summons issued to each of the several Defendants, as opposed to just the summons issued for Sunshine National—the Defendant being served. In addition to the errors noted above, the Court advises Plaintiff to refile its Request as an attachment to an actual Motion that describes not only the attached Request, but Plaintiff’s efforts to comply with the IACAP, as well as the relief being sought. The Court also urges Plaintiff to refile its Request for Service Abroad using the fillable PDF version of the necessary Forms (Forms A, B and C) provided by the U.S. Marshals Service, USM-272.8 Plaintiff should also consult the

guidance provided by both the State Department9 and the Department of Justice10 for completing the required Forms and perfecting service pursuant to the IACAP. Signed in Baton Rouge, Louisiana, on February 23, 2021.

S

SCOTT D. JOHNSON UNITED STATES MAGISTRATE JUDGE

8 Available at: https://www.usmarshals.gov/process/usm272.pdf.

9 Available at: https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/Service- of-Process/Inter-American-Service-Convention-Additional-Protocol.html.

10 Available at: https://www.justice.gov/civil/page/file/1064896/download and https://www.justice.gov/civil/service- requests.