Pesic v. Mauritius International Arbitration Centre Limited

Background

The court had previously authorized summonses for Talinka Trading Inc. and Barry Tilley. It directed Peter Nikola Pesic, who was proceeding without a lawyer, to serve them or seek more time. The court granted Pesic an additional 90 days. Pesic then moved for alternate service and filed a certificate of service concerning Talinka.

Service on Talinka

Pesic represented that service under Federal Rule of Civil Procedure 4(f)(2)(C)(ii) had been completed because DHL delivered a shipment to Intertrust Limited, which he identified as Talinka’s registered agent in Apia, Samoa. The court noted that Samoa is not a party to the Hague Service Convention, so service under Rule 4(f)(2) generally appeared appropriate.

The court found that the lack of an electronic copy of the recipient’s signature did not itself invalidate service. Based on the clerk’s certificate of mailing and DHL tracking information showing that the delivery was signed, the court was satisfied that the method of delivery complied with Rule 4(f)(2)(C)(ii). But the court said it was unclear whether Intertrust was actually Talinka’s registered agent and whether service on that agent satisfied the rule, which contemplates sending the materials to the individual or corporation being served.

The court therefore ordered Pesic to show cause in writing by February 26, 2024, why service on Intertrust qualified as adequate service on Talinka. It stated that if Pesic did not respond by the deadline, it would dismiss his claims against Talinka without further notice.

Motion for alternate service

Pesic sought permission under Rule 4(f)(3) to serve Tilley in Australia by an alternative method. Australia is a party to the Hague Service Convention, and the court noted that Pesic had not attempted service on Tilley under that Convention.

The court followed the approach used by many courts in the circuit, requiring a plaintiff seeking alternate service to show both a reasonable attempt to serve the defendant and circumstances requiring court intervention. Because Pesic had not shown any effort to serve Tilley under the Hague Service Convention, the court concluded that alternate service was not warranted. It denied the motion for alternate service, without prejudice to renewal if Pesic first attempted and failed to serve Tilley under the Convention.

To the extent Pesic also sought alternate service on Talinka, the court denied that request because Pesic represented that Talinka had already been properly served. The court stated that Pesic could renew the request if the court later determined that Talinka had not been served under Rule 4(f)(2)(C)(ii).

Other ruling

Judge Jesse M. Furman certified that any appeal from the order would not be taken in good faith and denied fee-free status for an appeal. The clerk was directed to terminate the alternate-service motion.