Equipav S.A. Pavimentacao, Engenharia e Comercio Ltda. v. Bertin

Background

Equipav S.A. Pavimentação, Engenharia e Comercia Ltda. brought the action to confirm in the United States a foreign arbitration award issued in Brazil against Silmar Roberto Bertin and Heber Participações SA. The opinion states that Bertin had not paid the award and that Heber had filed for bankruptcy protection in Brazil. Equipav also sought an order attaching Bertin’s assets located in New York. In a concurrently filed order, the court granted Equipav’s application for that attachment order.

Bertin resides in Brazil. Equipav began serving him under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, an international agreement governing service of legal documents abroad. The Brazilian authority responsible for service reported that completing service would take an average of seven to twelve months. Equipav therefore asked for permission under Federal Rule of Civil Procedure 4(f)(3) to use alternative service by emailing the petition, supporting materials, and attachment documents to eight attorneys connected to Bertin’s arbitration and Brazilian court proceedings.

Legal standard

Rule 4(f)(3) allows a court to order service on an individual in a foreign country by means not prohibited by an international agreement. The court explained that this method is not a last resort and that a party need not first attempt every other method under Rule 4(f). The proposed method must not violate an international agreement and must satisfy due process, meaning it must be reasonably likely to give the person notice of the case and an opportunity to object.

For email service, the moving party must provide facts showing that the person is likely to receive notice at the proposed email address. When service is directed to a foreign person’s lawyers, the party must also show adequate communication between the person and those lawyers. The court further noted that courts in the Southern District of New York generally consider whether the plaintiff reasonably attempted service and whether court intervention is necessary.

Court’s analysis

The court found that the proposed email service was not prohibited by the Hague Convention. The court stated that the Hague Convention does not address email service or prohibit service through a defendant’s lawyer. It also found that the Inter-American Convention on Letters Rogatory, which provides one possible method of service through formal requests between courts, was neither mandatory nor exclusive and did not bar email service.

The court also found that the proposed service would satisfy due process. Equipav’s Brazilian counsel stated that the lawyers who represented Bertin in the arbitration had regularly communicated with Empate’s lawyers on Bertin’s behalf. Equipav also identified three attorneys of record in ongoing Brazilian proceedings and stated that their email addresses were current because Brazilian law requires those addresses to be maintained in the relevant powers of attorney. Based on these facts, the court concluded that Bertin was likely to receive notice through the proposed email addresses.

Finally, the court concluded that Equipav had taken proper steps by beginning Hague Convention service, but that the expected seven-to-twelve-month delay made court intervention necessary. The court therefore found that alternative service was warranted.

Disposition

Judge Gardephe granted Equipav’s request for permission to serve Bertin by alternative service under Rule 4(f)(3). Equipav was authorized to email the petition and supporting materials, its renewed application for an attachment order, the attachment order, and the court’s order to the eight listed attorneys. Equipav was required to file proof on the court’s docket that it had completed email service no later than July 21, 2022. This order addressed service; the opinion does not state that the court decided whether the foreign arbitration award should ultimately be confirmed.