Vega v. Hastens Beds, Inc.

Background

Lizandra Vega brought employment-related federal and state discrimination and retaliation claims against Hastens Beds, Inc., Hastens Sangar AB (referred to in the opinion as Hastens AB), Hastens Ltd., and Jan Ryde. Hastens Beds answered and did not contest service or personal jurisdiction. Hastens AB, Hastens Ltd., and Ryde—the Foreign Defendants—moved under Federal Rules of Civil Procedure 12(b)(2), 12(b)(4), and 12(b)(5), challenging personal jurisdiction, the sufficiency of the process, and the sufficiency of service of process.

Vega attempted several forms of service. She sent waiver-of-service forms to Ryde in Sweden, but the forms were not returned. A process server later went to a New York office but found no one authorized to accept service for the Foreign Defendants. Attempts to serve Hastens Ltd. in Malta ended with the summons and complaint being left in a letterbox. In Sweden, a process server delivered documents for Hastens AB and Ryde to a staff member at Hastens AB’s offices and left documents for Ryde in the letterbox at his residence. The documents were written in English.

Service and Process Rulings

The court found no defect in the summonses themselves. The Foreign Defendants had not identified any problem with the form or content of the summonses, and the court found that process was not insufficient under Rule 12(b)(4).

The court held that none of Vega’s attempts properly served the Foreign Defendants under Rule 12(b)(5). Sending waiver forms was only a request to waive service; because the forms were not signed and returned, that attempt did not complete service. The June 22 attempt at the New York office also did not accomplish service because no authorized person was present. Service on Hastens Ltd. in Malta was defective because Malta had objected to the alternative Hague Convention methods used there and required service through its Central Authority.

The court also found that Vega had not shown that the Swedish process server was a competent person authorized to serve process in Sweden under the Hague Convention. Leaving documents in Ryde’s letterbox did not qualify as sending them through postal channels. Vega also did not show that the person who received the documents at Hastens AB’s office was an authorized person under Swedish law. Because the court found other grounds for insufficient service, it declined to decide whether the English-language documents independently violated Swedish law.

Rather than recommend dismissal for insufficient service, the court quashed service and preserved the action. Vega received 60 days to effect proper service on the Foreign Defendants. The court also denied Vega’s request for service expenses under Rule 4(d)(2), explaining that the rule does not apply to defendants located outside the United States.

Alternative Service

Under Rule 4(f)(3), a court may order an alternative method of serving a defendant in a foreign country when the method is not prohibited by an international agreement and satisfies due process. The court granted Vega leave to serve Hastens AB and Ryde by email through their counsel of record, Nixon Peabody LLP. The court found that Vega had reasonably attempted service in Sweden and that email service through lawyers actively representing the defendants was likely to reach them.

The court did not grant Vega leave under Rule 4(f)(3) to serve Hastens Ltd. by an alternative method. Because Malta requires service through its Central Authority, and Vega had not shown that she attempted that method, the court found alternative service for Hastens Ltd. unwarranted.

Personal Jurisdiction

The court deferred making a recommendation on the Foreign Defendants’ motion to dismiss for lack of personal jurisdiction. It found that the record was not complete enough to resolve that issue but that Vega had alleged enough to justify targeted jurisdictional discovery.

For Hastens AB and Hastens Ltd., the permitted discovery concerns the corporate relationship among those entities and Hastens Beds, and whether Hastens AB or Hastens Ltd. transacts business in New York, regularly conducts or solicits business there, or derives substantial revenue from interstate or international commerce or from goods used or consumed in New York. For Ryde, the discovery concerns his New York-based activities and whether he personally transacts business in New York, regularly conducts or solicits business there, or derives substantial revenue from interstate or international commerce or from goods used or consumed in New York.

The court stated that the Foreign Defendants did not have to provide jurisdictional discovery until they were served. However, if responsive information was in Hastens Beds’ possession, custody, or control, Hastens Beds was required to produce it. After discovery and supplemental briefing, the court would address the personal-jurisdiction motion.

Disposition and Scope

The court ordered that service on Hastens AB, Hastens Ltd., and Ryde was quashed; gave Vega 60 days to serve the Foreign Defendants; granted leave to serve Hastens AB and Ryde by email through Nixon Peabody LLP; deferred its recommendation on the personal-jurisdiction motion pending jurisdictional discovery and supplemental briefing; and did not grant alternative service for Hastens Ltd. The order did not decide the merits of Vega’s employment claims.