Williams v. Advertising Sex LLC

231 F.R.D. 483, 30 A.L.R. 6th 727, 2005 U.S. Dist. LEXIS 25670, 2005 WL 2837574
CourtDistrict Court, N.D. West Virginia
DecidedOctober 26, 2005
DocketNo. CIV.A. 1:05CV51
StatusPublished
Cited by7 cases

This text of 231 F.R.D. 483 (Williams v. Advertising Sex LLC) is published on Counsel Stack Legal Research, covering District Court, N.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Advertising Sex LLC, 231 F.R.D. 483, 30 A.L.R. 6th 727, 2005 U.S. Dist. LEXIS 25670, 2005 WL 2837574 (N.D.W. Va. 2005).

Opinion

ORDER GRANTING PLAINTIFF’S MOTION TO EFFECT SERVICE OF PROCESS ON SCOTT MOLES, WEB TRAFFIC INC., AND ZORG ENTERPRISES BY ALTERNATIVE MEANS UNDER FRCP 4(f)(3)

KEELEY, District Judge.

On October 11, 2005, the plaintiff, Allison Williams (‘Williams”), by her attorneys, Ste[485]*485phen M. LaCagnin, Andrew M. Wright, and Woodrow E. Turner, moved this Court pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure for an order permitting Williams to effect service of process on defendants Scott Moles, Web Traffic Inc., and Zorg Enterprises (“the defendants”) via electronic mail, international registered mail, and international standard mail. Attached to Williams’ motion are affidavits and registered mail receipts illustrating both the extent of Williams’ past efforts to serve the defendants and the lack of success of those efforts. Because Williams has established her good-faith efforts to serve process by formal means, and has also demonstrated the reasonableness of the alternative means she seeks under Rule 4(f)(3), the Court GRANTS her motion and DIRECTS Williams to serve the defendants as indicated below.

I. Background

On March 18, 2005, Williams sued fifty-nine (59) defendants, alleging that they participated in a conspiracy to defame her. Specifically, Williams alleges that these 59 defendants falsely identified her as the participant in a graphic internet video they circulated and advertised on multiple websites that juxtaposed her image as Miss West Virginia, 2003, with sexually explicit images on the video. The defendants to this motion are among those alleged to have defamed Williams in this manner.

II, FRCP 4(f)

Rule 4 of the Federal Rules of Civil Procedure governs service of process in civil suits, with the exception of the service of subpoenas, which is governed by FRCP 45. As the Advisory Committee Notes to the 1993 Amendments of Rule 4 point out, “a summons must be served whenever a person is joined as a party against whom a claim is made,” unless “service of the summons is waived.” The procedural requirements for service of process on an individual found outside the United States and joined as a party against whom a claim has been made are set forth in subdivision (f) of Rule 4. FRCP 4(h)(2) further authorizes service of process on a foreign business entity in “any manner prescribed for individuals by subdivision (f) .... ”

Here, Rule 4(f)’s strictures apply to each of the three defendants to this motion. Defendant Scott Moles is an individual found outside the United States. He resides in Australia. Defendants Web Traffic Inc., and Zorg Enterprises are business entities incorporated in and with principal places of business in Australia.

Within the strictures of Rule 4(f) there are three separate methods through which service of process “may be effected in a place not within any judicial district of the United States.”1 In the landmark opinion of Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007, 1014-15 (9th Cir.2002), the Ninth Circuit Court of Appeals held that each of Rule 4(f)’s three methods for international service of process is equivalent to one another. That is, “Rule 4(f) does not denote any hierarchy or preference of one method of service over another.” FMAC Loan Receiv[486]*486ables v. Dagra, 228 F.R.D. 531, 534 (E.D.Va.2005)(citing Rio, 284 F.3d at 1015). Further, “Rule 4(f)(3) is not subsumed within or in any way dominated by Rule 4(f)’s other subsections; it stands independently, on equal footing.” Rio, 284 F.3d at 1015. Thus, “court-directed service under Rule 4(f)(3) is as favored as service available under Rule 4(f)(1) or Rule 4(f)(2).” Id.

In this case, Williams seeks to serve process on the defendants pursuant to Rule 4(f)(3) as opposed to the means outlined in Rules 4(f)(1) or (2). The Fourth Circuit Court of Appeals has not addressed this issue. Therefore, in the absence of any controlling authority in this circuit, the Court adopts the reasoning of the Ninth Circuit in Rio Properties, Inc. v. Rio International Interlink, and concludes that Williams’ petition for direction under Rule 4(f)(3) of the Federal Rules of Civil Procedure may proceed without seeking service under the other provisions of Rule 4(f).

III. FRCP 4(f)(3)

Under FRCP 4(f)(3), “the task of determining when the particularities and necessities of a given case require alternate service of process” is placed squarely within the sound discretion of the district court. Rio 284 F.3d at 1016. Moreover, in exercising such discretion, the district court may require a showing by the plaintiff that reasonable efforts to serve the defendant have already been made and that the court’s intervention will avoid further unduly burdensome or futile attempts at service. Dagra, 228 F.R.D. at 534.

Here, Williams has attached numerous exhibits documenting her reasonable efforts to serve the defendants by traditional means. Attached to her motion are the affidavits of two Australian process servers, Tracey Fidler and John Kelly, who, between them, attempted physical service of process on the defendants thirteen (13) times between June 8, 2005, and August 16, 2005. Furthermore, they made numerous phone calls to a variety of numbers linked to the defendants, but with little success. It does appear that defendant Moles was contacted by cellular telephone on two occasions. On each occasion, however, Moles was evasive regarding his whereabouts.

In addition to multiple efforts at hand delivery, Williams attempted unsuccessfully to serve the defendants by international registered mail on April 22, 2005. That package was refused and returned to sender on May 4, 2005. Thus, prior to filing this motion, Williams had made reasonable, yet unsuccessful, efforts to effect formal service of process on the defendants. Given the difficulty Williams encountered despite her best efforts, the “particularities and necessities” of this case warrant service of process by alternate means.

Once it is established that alternate service is warranted, a court then must examine the contours of Rule 4(f)(3), which authorizes service “by other means not prohibited by international agreement as may be directed by the court.” The plain language of 4(f)(3) thus requires service of process to be directed by the court and not to be prohibited by international agreement.

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231 F.R.D. 483, 30 A.L.R. 6th 727, 2005 U.S. Dist. LEXIS 25670, 2005 WL 2837574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-advertising-sex-llc-wvnd-2005.