TracFone Wireless, Inc. v. Bitton

278 F.R.D. 687, 2012 U.S. Dist. LEXIS 6902, 2012 WL 123918
CourtDistrict Court, S.D. Florida
DecidedJanuary 11, 2012
DocketNo. 11-21871-CIV
StatusPublished
Cited by16 cases

This text of 278 F.R.D. 687 (TracFone Wireless, Inc. v. Bitton) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TracFone Wireless, Inc. v. Bitton, 278 F.R.D. 687, 2012 U.S. Dist. LEXIS 6902, 2012 WL 123918 (S.D. Fla. 2012).

Opinion

ORDER GRANTING PLAINTIFF’S MOTION FOR ORDER DIRECTING SERVICE OF PROCESS PURSUANT TO FED. R. CTV. P. 4(f)(1), (2)(C)(ii), AND (3)

ROBERT N. SCOLA, JR., District Judge.

THIS MATTER is before the Court upon Plaintiff TracFone Wireless, Inc.’s (“TracFone”) Motion for Order Directing Service of Process Pursuant to Federal Rules of Civil Procedure 4(f)(1), (2)(C)(ii), and (3) (ECF No. 17). TracFone brought this action on May 23, 2011 against several defendants, no longer parties to the action, alleging that they engaged in and knowingly facilitated the engagement of others in, the unlawful purchase and resale of TracFone prepaid airtime minutes for use on TracFone’s service, as well as the illegal procurement, use, and sale of certain proprietary information in violation of federal and state law. TracFone subsequently discovered the identities of the individuals allegedly perpetrating this scheme, specifically Defendants Isaac Bitton (“Bit-ton”), a resident of Canada resident, and Trung Truc (“Truc”), a resident of Vietnam. The First Amended Complaint raises claims only against these Defendants.

In the present Motion, TracFone seeks to effect service of process upon the Defendants by four different means: (1) service via inter[689]*689national mail to the Quebec Central Authority on Bitton in Canada pursuant to Federal Rule of Civil Procedure 4(f)(1) and the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; (2) service via FedEx directly on both Defendants sent by the Clerk’s office pursuant to Rule 4(f)(2)(C)(ii); (3) service via FedEx directly on both Defendants sent by TracFone pursuant to Rule 4(f)(3); and (4) service via email on True in Vietnam by send by TracFone pursuant to Rule 4(f)(3). TracFone also requests that the Court permit it to file a copy of the FedEx “proof of signature” or email delivery confirmation (or substantially equivalent documents) as proof that service has been effectuated via FedEx and email to satisfy the proof of service requirements of Rule 4(1). Finally, TracFone requests that the Court order that Defendants’ responses to the First Amended Complaint be due within twenty-one days of receipt of the Summons and Complaint under Rule 12(a)(1)(A). For reasons stated more fully below, TracFone’s Motion (EOF No. 17) is GRANTED.

I. RULE 4(f)

Federal Rule of Civil Procedure 4(f) sets forth the procedural requirements for effecting service upon individuals in foreign countries. In relevant part, that Rule provides as follows:

Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served at a place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: ...
(C) unless prohibited by the foreign country’s law, by:
(i) delivering a copy of the summons and of the complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.

Fed.R.Civ.P. 4(f).

II. RULE 4(f)(1) SERVICE ON BIT-TON IN CANADA

First, TracFone seeks to attempt service via international mail to the Quebec Central Authority on Bitton in Canada pursuant to Federal Rule of Civil Procedure 4(f)(1) and the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Convention”). The Convention, Nov. 15, 1965, 20 U.S.T. 361 [hereinafter Convention], is a multilateral treaty that allows service of process of judicial documents from one signatory state to another without the use of consular and diplomatic channels. Both the United States and Canada are signatories to the Convention, and it applies to all civil cases where there is an occasion to transmit a judicial document for service abroad. See, e.g., Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988) (“[C]ompliance with the Convention is mandatory in all eases to which it applies.”); Status Table, Hague Conference on Private Int’l Law (Jan. 9, 2012), http://www.hcch.net/index_en.php? act= conventions.status&cid=17 (noting Canada’s accession to Convention on September 26,1988).

Article 2 of the Convention provides that each contracting state shall designate a Central Authority that will receive requests for service from other contracting States. Con[690]*690vention, 20 U.S.T. 361. The principal method of service under the Convention is through the designated Central Authority. Additionally, Article 10(a) of the Convention provides that if “the State of destination does not object, the ... Convention shall not interfere with ... the freedom to send judicial documents, by postal channels, directly to persons abroad.” Id.

The Court observes that many federal circuit and district courts, including this Court and others in the Eleventh Circuit, have held that Article 10(a) permits service by mail unless the recipient State objects to this method. See, e.g., Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir.2004) (“Today we join the Second Circuit in holding that the meaning of ‘send’ in Article 10(a) includes ‘serve.’ In doing so, we also join the essentially unanimous view of other member countries of the Hague Convention.”); Ackermann v. Levine, 788 F.2d 830, 838 (2d Cir.1986) (approving service of process by mail under Article 10(a) of Convention); TracFone Wireless, Inc. v. Sunstrike Int’l, Ltd., 273 F.R.D. 697, 699 (S.D.Fla.2011) (directing Clerk to effect service to Hong Kong Central Authority via international express mail pursuant to Rule 4(f)(1) and Convention); TracFone Wireless, Inc. v. Bequator Corp., Ltd., 717 F.Supp.2d 1307, 1309 (S.D.Fla.2010) (same); Julien v. Williams, No. 8:10-CV-2358-T-24, 2010 WL 5174535, at *2 (M.D.Fla. Dec.

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278 F.R.D. 687, 2012 U.S. Dist. LEXIS 6902, 2012 WL 123918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracfone-wireless-inc-v-bitton-flsd-2012.