Payne v. McGettigan's Management Services LLC

Background

Susan Payne asked the court for permission to serve defendant Dennis McGettigan, who resides in the United Arab Emirates, through counsel for McGettigan’s Management Services LLC (MMS). On November 12, the court denied the request because Payne had not followed the case schedule and had not provided legal authority showing that substituted service was necessary or appropriate. The court ordered Payne to explain by November 15 why her claims against McGettigan should not be dismissed without prejudice.

Payne’s counsel responded that her former counsel had delayed service, while her current counsel had acted diligently. The court noted that both lawyers worked for the Derek Smith Law Group, PLLC, which had represented Payne throughout the case, so the explanation did not account for the law firm’s failure to follow the case schedule. The response did, however, provide a legal basis for alternative service under Rule 4(f) of the Federal Rules of Civil Procedure.

Legal standard

Rule 4(f) permits service on an individual in a foreign country through methods authorized by an international agreement, by certain forms of mail, or by another method not prohibited by an international agreement. Under Rule 4(f)(3), a court has broad discretion to order alternative service. The method must satisfy due process, meaning it must be reasonably likely, under the circumstances, to notify the person about the lawsuit.

The court explained that a plaintiff does not have to try every possible service method before seeking alternative service. Instead, the plaintiff must show that the facts and circumstances require the court’s intervention. The court also noted that alternative service can include email and service through United States counsel for a related entity, even if that counsel has not been formally authorized to accept service for the foreign defendant. Neither Payne nor MMS’s counsel suggested that the proposed methods would violate United Arab Emirates law.

Ruling and order

The court found that the facts and circumstances warranted intervention because Payne argued that international service would be prohibitively expensive and would cause undue delay. The court ordered Payne to serve McGettigan by November 22, 2019, in three ways: international certified mail to his home and business addresses in Dubai, email to dmcgettigan@bonningtontower.com, and substituted service through counsel for MMS. The court also ordered Payne to promptly file proof of service on the public docket.

This opinion concerns how McGettigan must be served. It does not decide the merits of Payne’s claims.