U.S. Commodity Futures Trading Commission v. Aliaga

272 F.R.D. 617, 2011 WL 941373, 2011 U.S. Dist. LEXIS 32872
CourtDistrict Court, S.D. Florida
DecidedFebruary 28, 2011
DocketNo. 10-21074-Civ
StatusPublished
Cited by22 cases

This text of 272 F.R.D. 617 (U.S. Commodity Futures Trading Commission v. Aliaga) 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
U.S. Commodity Futures Trading Commission v. Aliaga, 272 F.R.D. 617, 2011 WL 941373, 2011 U.S. Dist. LEXIS 32872 (S.D. Fla. 2011).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ALTERNATIVE SERVICE ON DEFENDANTS AND RELIEF DEFENDANT BETTY ALIAGA

MARCIA G. COOKE, District Judge.

THIS MATTER is before me on Plaintiffs Motion for Alternative Service on Defendants and Relief Defendant Betty Aliaga pursuant to FRCP 4(f)(3) and 4(h)(2) and Memorandum of Points and Authorities in Support Thereof. (ECF No. 35). Neither Defendants nor Relief Defendants have filed oppositions to this motion. I have reviewed the party’s arguments, the record, and the relevant legal authorities. For the reasons explained in this Order, the Plaintiffs Motion for Alternative Service is granted as to Defendants and denied as to Relief Defendant Betty Aliaga.

I. Background

Plaintiff, the U.S. Commodity Futures Trading Commission (“CFTC”), moves for an order authorizing alternative service of process on defendants Claudio Aliaga (“C. Alia-ga”) and CMA Capital Management, LLC (“CMA”) and relief defendant Betty Aliaga (B. Aliaga) via service on counsel of record for C. Aliaga and CMA, and via electronic mail (“e-mail”). Jonathan H. Rosenthal is counsel of record for C. Aliaga and CMA in this matter and is signed up to receive electronic notifications of filings in this case. Mr. Rosenthal’s office is located at Malman Malman & Rosenthal, 3107 Stirling Road, Suite 101, Fort Lauderdale, FL 33312. B. Aliaga is not represented by counsel in this action.

Pursuant to my Statutory Restraining Order (ECF No. 12), the Deputy U.S. Marshal [619]*619made unsuccessful attempts to serve process on Defendants and Relief Defendant at their last known addresses, as well as several alternate addresses. Each of those addresses are apparently invalid. No other addresses have been provided for Defendants or Relief Defendant. According to the CFTC, there are no known officers of CMA located in the United States on which it may perfect service of process for CMA.

The CFTC made efforts to contact C. Alia-ga via several e-mail addresses to perfect service on him or obtain a waiver of service. Two of the e-mail addresses were verified with CMA customers who recently had used those same addresses to communicate with C. Aliaga. The CFTC did not receive any bounce back e-mails to indicate that the messages were not delivered successfully. Nonetheless, the CFTC has not received any reply from C. Aliaga regarding those messages.

The CFTC also made efforts to contact counsel for Defendants to obtain a waiver of service. Mr. Rosenthal informed the CFTC that he was not authorized to accept service on behalf of the Defendants and he does not represent Relief Defendant.

Finally, the CFTC made inquiries to the U.S. Postal Service and to the U.S. Customs and Border Protection (Department of Homeland Security) in an effort to locate Defendants and Relief Defendants in the United States or abroad. Through its investigation into this matter, the CFTC has determined that C. Aliaga used the services of a communications firm located in the Dominican Republic to send e-mails to CMA customers and wired a total of $144,000 to a bank in the Dominican Republic for the benefit of C. Aliaga. Based on this evidence, the CFTC believes that C. Aliaga and B. Aliaga are located in the Dominican Republic.

II. Legal Standards

Rule 4(f)(3) of the Federal Rules of Civil Procedure, which governs service of an individual in a foreign country, provides: “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 ... by other means not prohibited by international agreement, as the court orders.” Rule 4(h) of the Federal Rules of Civil Procedure, which governs service on a corporation or other business entity, provides: “Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation ... must be served ... at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).” A corporation can therefore be served pursuant to Rule 4(f)(3).

Service may be accomplished under Rule 4(f)(3) as long as it is (i) ordered by the court, and (ii) not prohibited by an international agreement. See Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir.2002).

A court has discretion to determine what alternative means of service is appropriate in a particular case. Rio Props., Inc., 284 F.3d at 1016 (“[W]e commit to the sound discretion of the district court the task of determining when the particularities and necessities of a given case require alternate service of process under Rule 4(f)(3).”). Courts have permitted alternative service of process through various means, including by e-mail and/or service on local counsel. See, e.g., Rio Props., Inc., 284 F.3d at 1018 (affirming district court decision to permit service by e-mail and by regular mail to the defendant’s U.S. subsidiary and U.S. attorney); TracFone Wireless, Inc. v. Distelec Distribuciones Electronicas, S.A., 268 F.R.D. 687, 690 (S.D.Fla.2010) (permitting plaintiff to serve defendant via Fed-Ex and hand-delivery to defendant’s U.S. attorney); Chanel, Inc. v. Zhixian, No. 10-60585, 2010 WL 1740695, at *4 (S.D.Fla. Apr. 29, 2010) (authorizing service via e-mail and public announcement); In re Potash Antitrust Litig., 667 F.Supp.2d 907, 931 (N.D.Ill.2009) (directing substituted service on U.S. attorneys retained by Russian defendants); Brookshire Bros. Ltd. v. Chiquita Brands, Int’l, No. 05-21962, 2007 WL 1577771, at *2 (S.D.Fla. May 31, 2007) (authorizing service on foreign defendants through local counsel).

[620]*620The alternative method of service, however, must comport with constitutional notions due process. To meet this requirement, the alternative method of service “must be reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections.” Rio Props., Inc., 284 F.3d at 1016-17 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)) (internal quotation marks omitted).

III. Analysis

A. The Proposed Alternative Means of Service Do not Violate International Law

The Dominican Republic is not a signatory to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters or the Inter-American Convention on Letters Rogatory. No other treaties or international agreements appear to apply in this case. As such, no international law prohibits the CFTC from serving Defendants and Relief Defendant via e-mail or through service on local counsel in the United States.

B.

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Cite This Page — Counsel Stack

Bluebook (online)
272 F.R.D. 617, 2011 WL 941373, 2011 U.S. Dist. LEXIS 32872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-commodity-futures-trading-commission-v-aliaga-flsd-2011.