United States District Court, W.D. Tennessee, Western Division
BARBARA ANN HUNT SLAY, individually and as Personal Representative for the Estate of WILLIAM THOMAS HUNT, deceased, and on behalf of the wrongful death beneficiaries of WILLIAM THOMNAS HUNT, Plaintiff,
IB TRAVELIN, INC., formerly doing business as IBEROAMERICANA TRAVEL SYSTEM, INC., and DOMIRUTH TRAVEL SERVICES, SAC, Defendants.
H. MAYS, JR. UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Barbara Ann Hunt Slay's July 18,
2019 Renewed Ex Parte Motion to Authorize
Alternative Service of Process on Defendant Domiruth Travel
Services, SAC (“Domiruth”) Pursuant to Federal
Rule of Civil Procedure 4(f)(3). (ECF No. 18.)
following reasons, Slay's motion is GRANTED.
Court recounted the background of this case in its February
2, 2019 order denying Slay's first ex parte
motion to authorize alterative service of process on
Domiruth, a Peruvian travel company. (ECF No. 17.) Slay's
brother died in Peru while on a vacation partially organized
by Domiruth. Slay is suing Domiruth for negligence. New
representations that bear on the instant motion follow.
February 21, 2019, Slay's counsel sent a Notice of
Lawsuit and Request to Waive Service of Summons and Complaint
via United Parcel Service (“UPS”) to Domiruth at
Calle Rio de Janeiro 216 Miraflores in Lima, Peru. (ECF No.
18-3 at 127.)Domiruth received the notice and request to
waive service on February 28, 2019. (Id. at 140.)
Slay's counsel also sent the notice and request to waive
service to James Bennett Fox, Jr., a lawyer Domiruth had
retained in a prior, voluntarily dismissed case arising out
of the same circumstances and involving the same parties.
(ECF No. 18-5 at 144.)
March 5, 2019, Fox responded that he would speak with
Domiruth soon and would have an answer about waiver of
service and/or acceptance of service. (Id. at 145.)
On April 18, 2019, Fox said that he had spoken with Domiruth,
that Domiruth would not agree to waive service, and that
Domiruth had not authorized him to waive service or otherwise
accept service on its behalf. (Id. at 150.)
April 24, 2019, Slay's counsel sent a letter via UPS to
Domiruth at Calle Rio De Janeiro 216 Miraflores. (ECF No.
18-6 at 152.) The letter requested that Domiruth reconsider
waiving formal service and/or allow Fox to accept service on
its behalf. (Id.) Domiruth received the letter on
April 29, 2019. (Id. at 157.) On or about May 9,
2019, Slay's counsel received a letter from Domiruth that
acknowledged receipt of the April 24 letter and restated its
unwillingness to waive formal service of process or authorize
Fox to accept service on its behalf. (ECF No. 18-7 at 159.)
seeks authorization to serve Domiruth by alternative process
pursuant to Federal Rules of Civil Procedure 4(h)(2) and
4(f)(3). In particular, Slay seeks authorization to serve
Domiruth by the following means: (1) first class mail and
email to James Bennett Fox, Jr.; and (2) UPS on
Domiruth's chief financial officer at Domiruth's last
known corporate address.
Rule 4(h), “[u]nless federal law provides otherwise or
the defendant's waiver [of service] has been filed,
” service abroad on a foreign company must be effected
“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). Because Domiruth
has not filed a waiver of service, and because federal law
does not “provide  otherwise, ” Rule 4(f)
4(f) addresses service on individuals “not within any
judicial district of the United States.” Rule 4(f)(3)
allows service by “means not prohibited by
international agreement, as the court orders.” Although
Rule 4(f)(3) gives a court wide discretion to authorize
alternative service of process, a party seeking 4(f)(3)
authorization generally must show “that reasonable
efforts to serve the defendant have already been made, and
that the Court's intervention will avoid further
burdensome or futile attempts at service.” United
States v. Alphatec Spine, Inc., No. 1:13-cv-586, 2016 WL
1182260, at *2 (S.D. Ohio Mar. 28, 2016); see also Rio
Properties, Inc. v. Rio Int'l Interlink, 284 F.3d
1007, 1016 (9th Cir. 2002); FMAC Loan Receivables v.
Dagra, 228 F.R.D. 531, 534 (E.D. Va. 2005).
limit on Rule 4(f)(3) is the Due Process Clause of the Fifth
Amendment. Any authorized alternative service of process must
be “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.” Ming Kuo Yang v. City of Wyoming,
Mich., 793 F.3d 599, ...