General Star Indemnity Company v. First American Title Insurance Company of Napa

Background

General Star Indemnity Company brought this case against First American Title Insurance Company of Napa, Michael Venuta, First American Title Company of Napa, In The Vines LLC, and Lisa Mini to determine rights and obligations under an insurance policy. First American filed an answer and counterclaim asserting claims against Venuta, Mini, In The Vines, and First Napa.

Venuta was represented by Michael Healy in a related action in Napa Superior Court. The opinion states that Venuta primarily resided in Cabo San Lucas, Mexico, had retired, and had not visited the United States since early fall 2019. First American asked whether Venuta would waive service, but Healy responded that he was not authorized to accept service. First American later received emails from the address “mvenuta59@yahoo.com” concerning the related case and believed Venuta used that address.

Motion and opposition

First American moved under Federal Rule of Civil Procedure 4(f)(3) for permission to serve Venuta by alternative means: through Healy and through the email address. Rule 4(f)(3) allows a court to order service on an individual outside the United States by a method not prohibited by an international agreement.

Venuta opposed the motion. He argued that First American knew he lived in Cabo San Lucas and had made no effort to serve him there. He maintained that First American could use other methods authorized by Rule 4(f), including the formal process under the Hague Convention on service abroad.

Court’s analysis

The court explained that Mexico and the United States are parties to the Hague Convention and that Mexico had objected to certain alternative methods of service. But the court also concluded that the Hague Convention did not prohibit service through United States-based counsel or by email. Rule 4(f)(3) was not a “last resort,” and First American did not have to try every other permissible service method first.

The court found that service through Healy was reasonably calculated to notify Venuta because Healy actively represented Venuta in the related Napa case, had communicated with Venuta, had sought to require First American and General Star to participate in a settlement conference, and specially appeared for Venuta in opposing this motion. The court also found email service appropriate because the record showed that Venuta had used the email address to communicate with Healy about the related case.

The court did not consider Venuta’s substantive defenses to First American’s claims on this motion because Venuta was not yet before the court. The court nevertheless stated that Healy’s knowledge of at least some of Venuta’s defenses further supported the conclusion that service through Healy would notify Venuta and give him an opportunity to respond.

Disposition

The court granted First American’s motion for substitute service. It authorized service on Venuta through his United States-based counsel, Michael Healy, and through “mvenuta59@yahoo.com,” with return receipt requested. Any return of service had to include proof that First American had attempted, at a minimum, to verify actual receipt of the email. The court continued the case-management conference to November 19, 2020, and adjusted related deadlines.