Shiller v. Barraford

Background

The plaintiffs moved under Federal Rule of Civil Procedure 4(f)(3) for permission to use alternative service to serve Defendant John-Paul Thorbjornsen in Australia. Rule 4(f)(3) allows a court to authorize service outside the United States by means that are not otherwise specified in the rule, when appropriate.

The plaintiffs described efforts over three months to serve Thorbjornsen. Those efforts included hiring a surveillance team to monitor his movements, sending multiple process servers to his residence, and asking him to accept service by email. The plaintiffs argued that these unsuccessful efforts and the risk of further delay justified court intervention.

Australia is a signatory to the Hague Convention on service of judicial and extrajudicial documents. The plaintiffs had not attempted service under that Convention and argued that they were not required to do so before seeking alternative service.

Court’s Analysis

The court explained that courts in the Southern District of New York generally require plaintiffs to show both that they reasonably attempted service and that court intervention is necessary before authorizing alternative service under Rule 4(f)(3). The court stated that this district routinely requires an attempt under the Hague Convention when the defendant’s country of residence is a signatory.

The plaintiffs argued that their local process-server efforts were valid under Articles 10(b) and 10(c) of the Hague Convention because Australia does not object to service through a process server. The court rejected that argument based on the Supreme Court’s decision in Water Splash v. Menon. Under that decision, the Hague Convention does not affirmatively authorize the service methods listed in Article 10; it merely does not interfere with those methods when they are authorized by other applicable law.

The court therefore concluded that the plaintiffs’ unsuccessful personal-service efforts did not fall within Rule 4(f)(1), which permits service outside the United States through an internationally agreed method of service. The court reasoned that personal service was not an internationally agreed method under these circumstances merely because Australia had not objected to it.

Ruling

Judge Mary Kay Vyskocil denied the plaintiffs’ motion for alternative service without prejudice to renewal. The court found that the plaintiffs had not made the required showing that they reasonably attempted to serve Thorbjornsen because they had not first attempted service under the Hague Convention. The order addressed only the requested method of service; the opinion does not decide the underlying claims against the defendants.