Linares v. Herrera Virguez

Background

Zelhideth Montaño Linares filed a complaint seeking a declaratory judgment against Jose Luis Herrera Virguez. She asked for permission to use alternative service, meaning a court-approved method other than the ordinary method for delivering legal papers. Linares supported the request with materials from ABC Legal Services, including evidence about its attempts to serve Herrera through Venezuela’s central authority, and with filings from her attorney.

Applicable Rules

Linares relied partly on Federal Rule of Civil Procedure 4(e)(1) and New York law. The court held that Rule 4(e)(1) did not apply because it governs service on individuals within a United States judicial district. The court therefore did not consider the arguments based on that rule or New York law.

The court instead considered Federal Rule of Civil Procedure 4(f)(3), which permits service on an individual in a foreign country by another method that is not prohibited by an international agreement, as ordered by the court. The court explained that whether to permit service under Rule 4(f)(3) is within the district court’s discretion.

Reason for Allowing Alternative Service

Linares hired ABC Legal Services to attempt service consistent with the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters. On October 11, 2022, ABC sent the legal papers and a Spanish translation by DHL to Venezuela’s central authority. On November 2, 2022, ABC was notified that the package had not been accepted. An ABC employee stated that the company had been unable to have packages successfully delivered to Venezuela’s central authority during the preceding three years.

The court found that Linares’s attempt was sufficient to show that court intervention was necessary. Although Venezuela objects to the Hague Convention provision concerning service through postal channels, the court found the circumstances different from a case in which the plaintiff had not sent documents to the foreign country’s central authority or otherwise complied with the Convention. Here, the central authority did not reject service because of sovereignty or security concerns; it simply refused to accept the package. The court concluded that requiring Linares to continue using the Convention’s procedures would leave her without recourse because those procedures appeared futile.

Due Process

The court also considered whether email service would satisfy due process. Due process requires notice reasonably calculated to inform an interested person that a case is pending and to give that person an opportunity to object.

The court found that the proposed email address was likely to provide Herrera with notice. Linares stated that Herrera had used the address in Venezuelan court proceedings, that her Venezuelan attorney communicated with him through it, and that her attorney had received an email from Herrera at that address on January 10, 2023. The court also considered other possible methods. Linares was not connected with Herrera on social media and was not confident that she had his current cellphone number. She also expressed concern that publication in Venezuelan newspapers would not properly notify him.

Ruling

Judge Vernon S. Broderick granted Linares’s motion to serve Herrera by alternative means. The order authorized service on Jose Luis Herrera Virguez by email at herrerajotaele@hotmail.com. The Clerk’s Office was directed to terminate the open motions at Documents 8 and 9.