Tevra Brands LLC v. Bayer HealthCare LLC

Background

Tevra Brands LLC brought an antitrust lawsuit against Bayer Healthcare LLC, Bayer Animal Health GmbH, and Bayer AG concerning the distribution of “squeeze on” imidacloprid topical flea and tick treatments for pets. The complaint asserted claims under Section 3 of the Clayton Act and Section 2 of the Sherman Act.

The motion concerned service of process—not the merits of Tevra’s antitrust claims. Tevra sought permission under Federal Rule of Civil Procedure 4(f)(3) to serve Bayer Animal Health GmbH and Bayer AG, which the opinion identifies as German companies, through Daniel Asimow, Bayer Healthcare’s U.S.-based lead counsel, by email.

Tevra had attempted service through Germany’s central authority under the Hague Convention three times. The first two attempts were returned because of errors or missing information in the service packets. The third submission was received by the Düsseldorf court on March 13, 2020. In April 2020, Tevra learned that the Düsseldorf court was operating only partially because of the COVID-19 pandemic and had a backlog of foreign-service requests. Tevra then asked the German defendants’ counsel to accept service, but the requests were refused.

Parties’ positions

Tevra argued that the pandemic-related delay justified alternative service and that it would otherwise be prejudiced because discovery was scheduled to close in October 2020 and Tevra had not been able to seek discovery from the German defendants.

Bayer Healthcare opposed the motion. It argued that the delay resulted from Tevra’s own inaction and errors, that Tevra faced no risk of prejudice, and that bypassing the Hague Convention would violate principles governing respect for foreign jurisdictions.

Court’s analysis

Rule 4(f)(3) permits a federal court to authorize service abroad by a method not prohibited by an international agreement. The court explained that a plaintiff does not have to try every possible service method first. But the court must still decide whether the particular circumstances require alternative service, and a faster method alone is not enough.

The court agreed with Bayer Healthcare that Tevra had not shown the necessary circumstances. Tevra waited about a month after the summonses were issued before beginning service efforts, initially contacted a lawyer who represented a nonparty affiliate rather than the German defendants, and waited additional periods after the first two service packets were returned. The court found that these delays occurred before the pandemic disrupted service in Germany.

The court also found that the complete service packets had been submitted to Germany’s central authority only on March 9, 2020—just over three months before the motion. It relied on authorities discussing a six-month period before alternative methods may become appropriate. Because the German central authority had not yet had that amount of time to process the complete submission, the request was premature. The court also noted that trial was more than a year away, leaving time for service and litigation.

The court recognized that the pandemic could eventually cause an actual delay. It further stated that service through Mr. Asimow, if needed, would be reasonably calculated to notify the German defendants of the case and give them an opportunity to object. The court expressly declined to address Bayer Healthcare’s separate arguments about whether the German defendants were properly sued because those arguments were not relevant to the alternative-service motion.

Disposition

Judge Beth Labson Freeman denied Tevra’s Motion for Alternative Service without prejudice. The order stated that Tevra may renew the request after showing actual delay and that court intervention is necessary to avoid burdensome or futile service attempts.