United States District Court, N.D. Oklahoma
JOSHI TECHNOLOGIES, INTERNATIONAL, INC., an Oklahoma corporation, Plaintiff,
CONSORCIO PEGASO, an Ecaudorian unincorporated joint venture partnership, and CAMPO PUMA ORIENTE S.A., a Panamanian incorporated joint venture, and joint venturer/partner in Defendant CONSORCIO PEGASO, Defendants.
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISRTICT
the court is the Motion for Alternative Service [Doc. No. 7]
of plaintiff Joshi Technologies International, Inc.
(“JTI”). For the reasons set forth below, the
motion is denied without prejudice.
dispute arises from the alleged failure of defendants
Consorcio Pegaso and Campo Puma Oriente S.A.
(“CPO”) to make payments required under a series
of promissory notes to JTI. As alleged, Consorcio is a joint
venture partnership with its principal place of business in
Ecuador; CPO is a joint venture incorporated in Panama;
CPO39;s principal place of business is also in Panama,
though it operates a branch in Ecuador. Gammon India
Limited-an Indian company-is the majority owner of CPO, which
in turn, is a member and majority owner of Consorcio. JTI
moves to serve CPO and Consorcio by email-specifically, by
email addressed to certain corporate representatives of
Gammon. Panama, Ecuador, and the United States are all
members of the Inter-American Convention on Letters Rogatory
(“IAC”), which governs “[t]he performance
of procedural acts of a merely formal nature, such as service
of process.” Inter-American Convention on Letters
Rogatory art. 2(a), Jan. 30, 1975, 28 U.S.C. § 1781.
federal court may assert jurisdiction over a defendant only
if “‘the procedural requirements of service . . .
[have] be[en] satisfied.” See Baca v.
Rodriguez, 554 F.App39;x 676, 678 (10th Cir. 2014)
(quoting Omni Capital Int39;l, Ltd. v. Rudolf Wolff
& Co., 108 S.Ct. 404, 409 (1987)); Haryarimana
v. Kagame, 821 F.Supp.2d 1244, 1251 (W.D. Okla. 2011).
Service not only “notif[ies] a defendant of the
commencement of an action against him, ” but also
“provid[es] a ritual that marks the court39;s
assertion of jurisdiction over the lawsuit.” See
Okla. Radio Assocs. v. FDIC, 969 F.2d 940, 943 (10th
Cir. 1992). To that end, Fed.R.Civ.p. 12(b)(5) permits
dismissal of a case for “insufficient service of
process.” As a general matter, that analysis is
governed by Fed.R.Civ.P. 4 and principles of due process.
See Okla. Radio Assocs., 969 F.2d at 943;
Anzures v. Flagship Rest. Grp., 3d 1277');">819 F.3d 1277, 1279
(10th Cir. 2016).
asks the court to order service by email on corporate
representatives of Gammon- not CPO or Consorcio-pursuant to
Fed.R.Civ.P. 4(f)(3). Citing Rio Props., Inc. v. Ri
Int39;l Interlink, 3d 1007');">284 F.3d 1007 (9th Cir. 2002) and
its progeny, JTI asserts that Rule 4(f)(3) stands on equal
footing with other methods of international service allowed
by Rule 4. [Doc. No. 7, pp. 1- 4]. For purposes of this
opinion, the court assumes Rio was correctly
decided, but nevertheless concludes that the method of
service requested by JTI must be rejected.
JTI39;s request is constitutionally defective. Service by
email on a parent company is not “reasonably
calculated” to provide notice to the
subsidiary-defendants in this case. Even in the best of
circumstances, notice by email has significant limitations:
“there is no way to confirm receipt of an email
message”; “[l]imited use of electronic signatures
could present problems in complying with [ ] verification
requirements”; “compatibility problems may lead
to controversies over whether an exhibit or attachment was
actually received”; and “[i]mprecise imaging
technology may even make appending exhibits and attachments
impossible in some circumstances.” See Rio,
284 F.3d at 1018; accord Liberty Media Holdings, LLC v.
Sheng Gan, Civil Action No. 11-cv-02754-MSK-KMT, 2012 WL
122862, at *2 (D. Colo. Jan. 17, 2012).
these are not the best of circumstances. JTI seeks to serve
Gammon-a parent company-rather than CPO or Consorcio
directly. “Generally, service on a parent, subsidiary,
cosubsidiary, or affiliate of a corporate defendant is not
service on the defendant.” Am. Jur. 2d § 255
(2007); accord Carl Kelly Const. LLC v. Danco
Techs., 323');">656 F.Supp.2d 1323, 1336 (D.N.M. 2009);
Raeth v. Bank One, Civil Action No.
05-cv-2644-WDM-BNB, 2008 WL 410596, at *3 (D. Colo. Feb. 13,
2008). That general rule applies here. JTI argues that Gammon
agreed to accept service via email in a Joint Venture
Agreement creating CPO. But the court finds no evidence to
that effect. For one thing, JTI does not attach the
Agreement. For another, nothing suggests Gammon agreed to
accept service-as opposed to other notices required by
contract-via email, or that it would do so on behalf of
subsidiary entities. In fact, emails attached by JTI show
that Gammon39;s corporate representatives were unsure
“[h]ow . . . a [m]inor[ ] [p]artner in a JV [could]
serve notice on [a] [m][a]jority [p]artner, without informing
them in advance” and expressed “agitat[ion] and
annoy[ance]” at being asked to “join the legal
fray.” [Doc. No. 7-3, p. 1]. JTI does not disclose what
role, if any, Gammon39;s corporate representatives play in
the operation of CPO or Consorcio.
the court declines to exercise its discretion to order
service under Rule 4(f)(3). Rule 4(f)(3) grants courts the
discretion to authorize service “by other means not
prohibited by international agreement.” And before
granting an (f)(3) request, the court may require that
plaintiff attempt to conventionally serve defendants pursuant
to (f)(1) or (f)(2). See, e.g., Prewitt Enters.,
Inc. v. OPEC, 353 F.3d 916');">353 F.3d 916, 927 (11th Cir. 2003);
U.S. Aviation Underwriters, Inc. v. Nabtesco Corp.,
No. C07-1221RSL, 2007 WL 3012612, at * (W.D. Wash. Oct. 11,
2017); Liberty Media Holdings, 2012 WL 122862, at
*2; Nabulsi v. Nahyan, Civil Action No. H-06-2683,
2009 WL 1658017, at *11 (S.D. Tex. June 12, 2009).
approach comports with longstanding judicial practice to
minimize potential conflict between domestic and
international law. See, e.g., Murray v. Schooner
Charming Betsy, 6 U.S. 64 (2 Cranch), 118 (1804)
(Marshall, C.J.) (“[A]n act of Congress ought never be
construed to violate the law of nations if any other possible
construction remains[.]”); Restatement (Third) of
Foreign Relations Law of the United States §114 (1987)
(“Where fairly possible, a United States statute is to
be construed so as not to conflict with international law or
with an international agreement of the United
is supported by the Advisory Committee Notes as well. The
note to subsection (f)(1) states that “the methods of
service under an applicable treaty shall be employed
if available and [ ] the treaty so requires.”
Fed.R.Civ.P. 4(f), advisory committee39;s note to 1993
amendment (emphasis added). And “resort . . . to the
provision set forth in subdivision (f)(3)” was
generally considered appropriate in exceptional
circumstances-for example, when a “signatory state was
dilatory or refused to cooperate.” Id. Indeed,
Rule 4(f)(3) was expreslly intended as a catchall to
authorize “other methods of service not prohibited by
international agreements”-but only where
“consistent with due process and [designed to]
minimize[ ] offense to foreign law.” Id.
approach here-to request service by email without first
attempting service under foreign law-does not comport with
that guidance. JTI argues service by email is not prohibited
by the IAC. That is true, but beside the point. See,
e.g., Inter-American Convention on Letters Rogatory art.
15, Jan. 30, 1975, 28 U.S.C. § 1781 (“This
Convention shall not . . . preclude the continuation of more
favorable practices . . . that may be followed by these
States.”); Kreimerman v. Casa Veerkamp, 22
F.3d 634, 647 (5th Cir. 1994); In re Petrobras Secs.
Litig., 14-CV-9662 (JSR), 2016 WL 908644, at *2
(S.D.N.Y. Mar. 4, 2016). Because an international agreement
“allows but does not specify other means, ”
Fed.R.Civ.P. 4(f)(2), JTI should endeavor to follow the laws
of service for Panama and Ecuador before seeking leave to
effectuate alternative service under subsection (f)(3). And