Live Brands Holdings v. Gastronomico Gracias a Dios

Background

Live Brands Holdings, LLC filed the action on February 11, 2020, against Gastronomico Gracias a Dios, Sociedad Responsabilidad Limitada de Capital Variable, Xaime Niembro Alvarez, Pablo Lopez Vargas, Jose Enrique Jimenez Barcenas, and Oscar Hernandez Santiago. The opinion states that the corporate defendant was formed and had its principal place of business in Mexico, and that the individual defendants were citizens of Mexico. Summonses were issued on February 12, 2020, but Live Brands had not served any defendant by May 7, 2020.

The court had scheduled an initial pretrial conference for May 14, 2020, and required the parties to submit a joint letter and proposed case-management plan by May 7, 2020.

Motions and Governing Rules

Live Brands filed three motions. It moved to adjourn the initial pretrial conference and extend the deadline for the joint letter and proposed case-management plan. It also moved for issuance of letters rogatory and for permission to serve the defendants by alternative means under Federal Rule of Civil Procedure 4(f)(3).

Rule 4(f)(1) permits service abroad through internationally agreed methods, including methods authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. Rule 4(f)(2) provides other procedures when there is no applicable international agreement or the agreement permits other methods, and letters rogatory are one option under that rule. Rule 4(f)(3) permits other service methods not prohibited by an international agreement when ordered by the court. The court also noted that service on a foreign business entity may generally be made in the same manner as service on an individual under Rule 4(f).

The court stated that Mexico and the United States are signatories to the Hague Convention and that service on defendants in Mexico must conform to its requirements. It also explained that courts in the district generally require a plaintiff seeking alternative service to show both a reasonable attempt to serve the defendant and circumstances making court intervention necessary.

Court’s Analysis

Live Brands did not argue that the Hague Convention was inapplicable and did not justify its failure to try service under that Convention. Its only service effort involved waiting for an individual defendant, who was also a principal and officer of the corporate defendant, to travel to New York City and looking for other opportunities to serve the defendants in the United States. Live Brands had not attempted any Hague Convention service method.

The court therefore found that Live Brands had not shown that it had reasonably attempted to serve the defendants. The court also rejected Live Brands’s concern that letters rogatory could take eight to twelve months, stating that the concern was unsupported except for counsel’s unsworn statement, premature, and not relevant to the Hague Convention because Hague Convention service does not require letters rogatory.

The court reminded Live Brands that it remained responsible for serving the defendants within a reasonably timely period. Although the usual 90-day service period does not apply to service in a foreign country, the court said it would use a flexible due-diligence standard to assess the timeliness of service. The court warned that failure to make reasonable efforts could result in dismissal of the action.

Disposition

Judge Gregory H. Woods denied without prejudice the motions for issuance of letters rogatory and for alternative service at that time. In the final disposition, the order states that the motion for letters rogatory, docket number 21, and the motion for alternative service, docket number 19, were denied. The court granted the motion to adjourn the initial pretrial conference, docket number 20. The conference was rescheduled for September 22, 2020, at 4:00 p.m., and the required materials were due by September 15, 2020. The order did not decide the underlying merits of Live Brands’s claims.