DeltaTrak, Inc. v. SEO Chemical S.A.C.

Background

DeltaTrak, Inc. brought claims against SEO Chemical S.A.C. for breach of contract, common counts involving goods delivered, promissory estoppel, and unjust enrichment. DeltaTrak described SEO Chemical as a foreign corporation registered in Lima, Peru.

Before asking the court for help, DeltaTrak sought a waiver of formal service from SEO Chemical and its counsel. DeltaTrak then asked for permission to serve SEO Chemical by email, international registered mail, and international standard mail.

Court’s reasoning

Federal Rule of Civil Procedure 4(f)(3) allows a court to order service outside the United States by means not prohibited by an international agreement. Because SEO Chemical is a corporation, Rule 4(h) applies, and Rule 4(h)(1)(A) allows service in the manner permitted for an individual under Rule 4(f).

The court noted that the United States and Peru are parties to the Inter-American Convention on Letters Rogatory and its Additional Protocol. The court concluded that DeltaTrak’s request for alternative service was premature because DeltaTrak had not first attempted service through diplomatic channels. The court found that the expected difficulties and delay appeared less significant for service in Peru and noted that processing generally took about three months. It also stated that following procedures recognized by Peruvian law could help with later enforcement of any judgment in Peru.

Ruling

The court denied without prejudice DeltaTrak’s motion for an order allowing alternative service. It required DeltaTrak to proceed under the Inter-American Convention pursuant to Rule 4(f)(1), or by a method reasonably calculated to give SEO Chemical notice in compliance with Peruvian law under Rule 4(f)(2). The court stated that DeltaTrak may re-file its request under Rule 4(f)(3) if it cannot complete service after diligent attempts. Judge Yvonne Gonzalez Rogers terminated docket number 14.