400 East 62nd Properties, LLC v. Grupo Cinemex, S.A. DE C.V.

Background

400 East 62nd Properties, LLC brought this action against Grupo Cinemex, S.A. DE C.V. The opinion addresses the plaintiff’s motion for permission to serve Grupo Cinemex by alternative means or, alternatively, for an extension of time to serve it through the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. The Hague Convention is an international procedure for serving legal documents across borders.

The plaintiff retained a firm specializing in international litigation and attempted service through Mexico’s central authority twice. The first request was returned unexecuted because no person was available at Grupo Cinemex’s physical office to accept service during the COVID-19 pandemic. The court had previously given the plaintiff until March 21, 2023, to provide proof of service or documentation of its attempts, and had described that extension as final.

The plaintiff’s later filings documented additional efforts. In September 2022, it obtained a summons and submitted a second service request to Mexico’s central authority. That authority later stated that service could not be completed because the provided address did not include an interior room or office number and asked for the full address. The plaintiff and Grupo Cinemex agreed that the address provided was correct. Grupo Cinemex also acknowledged that it did not know why the request had been returned because its address was publicly and undisputedly correct.

Court’s Analysis

The court applied a due-diligence standard for timely service on a defendant in a foreign country. Under that standard, the court considers the reasonableness of the plaintiff’s efforts and any prejudice to the defendant from delay.

The court found that the plaintiff had acted diligently. Although the case had been pending for more than three years and the court had warned that the previous extension was final, the court concluded that the delay since its prior order was largely caused by the plaintiff’s efforts to follow the Hague Convention’s required procedures. The court also found that Grupo Cinemex knew about the litigation, had appeared through counsel for limited purposes, and had not identified prejudice from additional delay. The court stated that the record did not support inferring sufficient prejudice.

Disposition

The court granted in part and denied in part the plaintiff’s motion. It granted the request for an extension of time to serve Grupo Cinemex through the Hague Convention. The plaintiff was ordered to file proof of service by January 19, 2024. If it could not complete service, it was required to file documentation of all attempts to do so by the same deadline. The court denied as moot the alternative request for permission to serve Grupo Cinemex by mail and email. The Clerk of Court was directed to terminate ECF Nos. 40 and 46.

Judge Jennifer L. Rochon’s order addressed service of process and did not decide the underlying claims described in the complaint.