United States District Court, M.D. Alabama, Eastern Division
OPINION AND ORDER
C. MARKS CHIEF UNITED STATES DISTRICT JUDGE
pending before the court is the plaintiffs' unopposed
motion for entry of an order allowing an alternative method
of service on Fort Metal Plastic Co., Ltd. (“Fort Metal
Plastic Co.”) filed on January 28, 2019. (Doc. 65).
action was filed on June 13, 2017, against Defendant Medical
Depot, Inc. d/b/a Drive DeVilbiss Healthcare in the Northern
District of Alabama (doc. 1). On September 19, 2017, the
Plaintiffs filed an amended complaint against that Defendant.
(Doc. 16). On October 19, 2017, the case was transferred from
the Northern District of Alabama to this Court. (Doc. 24).
April 20, 2018, the Plaintiffs filed a second amended
complaint, adding Fort Metal Plastic Co. as a defendant.
(Doc. 49). Fort Metal Plastic Co. is a foreign company
located in China. In an effort to serve Fort Metal Plastic
Co., the Plaintiffs hired APS International/Civil Action
Group (“APS International”) to effect service of
process on Fort Metal Plastic Co. pursuant to the Hague
Convention. APS International processed the service
documents, translated them into Mandarin Chinese, and
forwarded the documents to the Ministry of Justice of China,
the Central Authority for the People's Republic of China.
The documents were received by the Chinese authorities on May
24, 2018. APS International sent a second letter to the
Ministry of Justice of the People's Republic of China on
February 1, 2019. As of late March 2019, APS International
had not received a response to either letter. The Plaintiffs
anticipate that service of process and proof of service or
non-service may not be completed until June 2020.
Consequently, they seek permission to serve Defendant Fort
Metal Plastic Co. by electronic mail in accordance with
4(h)(2) of the Federal Rules of Civil Procedure governs
service of process on a foreign corporation “not within
any judicial district of the United States.” The rule
provides that the corporation may be served “in any
manner prescribed by Rule 4(f) for serving an individual,
except personal delivery under (f)(2)(C)(i).”
Fed.R.Civ.P. 4(h)(2). Rule 4(f) permits service of an
individual in a foreign country “by any internationally
agreed means of service that is reasonably calculated to give
notice, such as those authorized by the Hague Convention on
the Service Abroad of Judicial and Extrajudical
Documents;” or “by any other means not prohibited
by international agreement, as the court orders.”
Fed.R.Civ.P. 4(f)(1) and (3). Consequently, service on the
foreign defendant may by accomplished by alternative means
pursuant to Rule 4(f)(3) provided that the court orders
service that is not prohibited by an international agreement.
See Tiffany (NJ) LLC v. DORAPANG Franchise
Store, 2018 WL 4828430 (S.D. Fla. 2018); North Face
Apparel Corp. v. 4usedtrailers.com, 2018 WL 4844250
(S.D. Fla. 2018).
Fort Metal Plastic Co. is located in China, and service by
electronic means is not prohibited by international agreement
in this case. The United States and China are both
signatories to the Hague Convention on the Service Abroad of
Judicial and Extrajudical Documents (“the Hague
Convention”) and the Hague Convention does not preclude
alternative methods of service including electronic mail.
See North Face Apparel Corp., supra;
Tiffany (NJ) LLC, supra; Toyo Tire & Rubber
Co. Ltd., v. CIA Wheel Group, 2016 WL 1251008 (C.D. Cal.
2016). Thus, the Plaintiffs have established that service by
email is not prohibited by international agreement.
Court now determines whether “service by email is
reasonably calculated to provide actual notice to the
defendant.” Toyo Tire & Rubber Co. Ltd.,
2016 WL 1251008 at *2. Defendant Medical Depot's
corporate representative testified in deposition that
Defendant Medical Depot regularly conducted business and
communicated with Fort Metal Plastic Co. by electronic mail.
reasons as stated, the Court is reasonably satisfied that
service upon Fort Metal Plastic Co. by electronic mail, under
the particular circumstances of this case, is
“reasonably calculated” to give Fort Metal
Plastic Co. notice of the pendency of this action and to
provide it with an opportunity to object. See Chanel,
Inc. v. Zhixian, 2010 WL 1740695, *3 (S.D. Fla. 2010)
(“Constitutional due process requires only that service
of process provide ‘notice reasonably calculated, under
all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to
present their objections.'”) (citing Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314
that the Plaintiffs' unopposed motion (doc. 65) be and is
hereby GRANTED, and the Plaintiffs shall serve the Summons,
Second Amended Complaint, and all future filings in this
matter, including Court Orders, upon Defendant Fort Metal
Plastic Co. via the email address provided by Defendant
Medical Depot as the email by which Medical Depot
communicates with Fort Metal Plastics Co.