TransparentBusiness, Inc. v. Infobae

Opinion

1 2 3 4 5 6 7 8 TRANSPARENTBUSINESS, INC., a 12. || Delaware corporation, MARIA SILVINA Case No. 3:20-cv-00582-MMD-WGC MOSCHINI, an individual; and, 13 || ALEXANDER KONANYKHIN, an individual, 14 Plaintiffs, ORDER GRANTING MOTION FOR ORDER AUTHORIZING 15 || VS: ALTERNATIVE SERVICE OF PROCESS ON DEFENDANT 16 || INFOBAE, an Argentinian company; and, SANTIAGO SIRI PURSUANT TO SANTIAGO SIRI, an individual, FRCP 4(F)(3) M7 Defendants. 18 □□ 19 Pending before the Court is Plaintiffs TransparentBusiness, Inc., Maria Silvina Moschini, 20 || and Alex Konanykhin’s (collectively, “Plaintiffs”) Motion for Order Authorizing Alternative 21 || Service of Process on Defendant Santiago Siri Pursuant to FRCP 4(f)(3), filed on November 24, 22 || 2020 (the “Motion’”). ECF No. 5. The Motion is properly resolved without a hearing. See Local 23 || Rule 78-1. For the reasons discussed below, the Motion is GRANTED. 24 Plaintiffs initiated this action against defendants Santiago Siri and Infobae asserting 25 || causes of action for: (1) defamation; (2) business disparagement; (3) intentional interference with 26 || prospective economic advantage; and, (4) negligence. See First Amended Complaint, ECF No. 4. 27 || Plaintiffs allege that Defendant Santiago Siri currently resides in Spain. Spain and the United 28 || States, along with 84 other countries, are members to the Hague Convention on the Service

1 || Abroad of Judicial and Extrajudicial Documents (commonly referred to as the “Hague 2 || Convention”). The Hague Convention was enacted to establish a process whereby documents 3 || being served abroad might be served in a simpler and timely manner, to ensure that defendants 4 || sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof 5 || of service abroad. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988). 6 Note § 10(a) of the Hague Convention states that the Convention does not interfere with 7 || the “freedom to send judicial documents, by postal channels, directly to persons abroad” if the 8 || country of destination does not object. The Ninth Circuit has joined the Second Circuit in holding 9 || that the meaning of “send” in Article 10(a) includes “serve.” See Brockmeyer v. May, 383 F.3d 10 || 798, 801 (9th Cir. 2004). Spain has not objected to Note § 10(a) of the Hague Convention. 11 In addition to Spain’s approval of service by mail, the law of the forum must also 12 || authorize service by international mail in order for service to be properly effectuated. FRCP 13 || 4(3) (previously Rule 4()(1)(E)) affirmatively authorizes the Court to direct any form of 14 || service that is not prohibited by an international agreement. It provides “service . . . may be 15 || effected in a place not within any judicial district of the United States .. . by other means not 16 |} prohibited by international agreement as may be directed by the court.” Id. 17 The decision whether to allow alternative methods of serving process under Rule 4(f)(3) is 18 || committed to the “sound discretion of the district court.” Rio Props., Inc. v. Rio Int’l Interlink, 19 |} 284 F.3d 1007, 1016 (9th Cir.2002) (permitting service on a foreign corporation by regular mail 20 || and by e-mail, when authorized by the district court). Courts have authorized a variety of 21 || alternative methods of service abroad under current Rule 4(f)(3) and former Rule □□□□□□□□□ 22 || including not only ordinary mail and e-mail but also publication and telex. Rio Props., 284 F.3d 23 || at 1016 (citing SEC v. Tome, 833 F.2d 1086, 1094 (2d Cir.1987) (affirming district court’s 24 || authorization of service of process by publication); Int’! Controls Corp., 593 F.2d at 176 25 || (affirming district court’s authorization of service of process by ordinary mail to last known 26 || address); Forum Fin. Group v. President, Harvard Coll., 199 F.R.D. 22, 23-24 (D.Me.2001) 27 || (authorizing service by certified mail to defendant’s attorney); Smith v. Islamic Emirate, 2001 28 || WL 1658211, at *2—-*3 (S.D.N.Y. Dec. 26, 2001) (authorizing service of process by publication _2-

1 || on Osama bin Laden and al-Qaeda); Broadfoot v. Diaz (In re Int’l Telemedia Assoc.), 245 B.R. 2 || 713, 719-20 (Bankr. N.D. Ga. 2000) (authorizing service via facsimile, ordinary mail, and email); 3 || Levin, 248 F.Supp. at 541-44 (S.D.N.Y.1965) (employing service by ordinary mail)). 4 The plain language of Rule 4(f)(3) requires only that service be directed by the court and 5 || that it not contravene an international agreement. Rio Props., Inc. at 1014. “No other limitations 6 || are evident from the text.” Jd. at 1016. Service under this provision must “comport with 7 || constitutional notions of due process” and be reasonably calculated, under the circumstances, to 8 || “apprise the interested parties of the pendency of the action and afford them an opportunity to 9 || present [their] objections.” Jd. at 1016 (citing Advisory Committee Notes to Rule 4(f)(3)). 10 Given the particularities and necessities of this case, the Court finds it appropriate to 11 || authorize alternative service of process under FRCP 4(f)(3). See Absolute Swine Insemination 12 || Co., (H.K.) Ltd. v. Absolute Swine Insemination Co., LLC, 2:12-CV-00606-KJD, 2012 WL 13 || 3536788, at *3 (D. Nev. Aug. 14, 2012) (finding that service by international mail is appropriate 14 || to serve the Complaint and summons under FRCP 4(f)(3)). The Court finds that: Article 10(a) of 15 || the Hague Convention permits service by mail; Spain has not objected to Article 10(a) of the 16 |} Hague Convention; Spain approves of service by mail; and, service by mail is sufficient to 17 || provide actual notice to Siri of the pendency of the action. Accordingly, the Court authorizes 18 || Plaintiffs to effectuate service of process under FRCP 4 by serving defendant Santiago Siri with a 19 || Spanish-translated copy of the First Amended Complaint and Summons by mail. 21 Dated: December 4 __, 2020. 22 °° Pit CG. Cott 24 WILLIAMG.COBB i □□□□□ 35 UNITED STATES MAGISTRATE JUDGE

26 27 28 _3-