Opinion
15 Civ. 1671(JSR)
10-18-2015
ALTOS HORNOS de MEXICO, S.A.B. de C.V., Petitioner, v. ROCK RESOURCE LIMITED, Respondent.
MEMORANDUM ORDER
On March 6, 2015, petitioner Altos Hornos de Mexico, S.A.B. de C.V. ("AHMSA") filed a motion to confirm an arbitration award issued against respondent Rock Resource Limited ("Rock Resource"). See Petition to Confirm Arbitration Award dated March 6, 2015, Dkt. 1. After an unsuccessful attempt to serve Rock Resource in Hong Kong under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the "Hague Convention"), petitioner AHMSA filed a motion for alternative service of process pursuant to Fed. R. Civ. P. 4(f)(3) and 4(h)(2) on September 3, 2015. For the reasons set forth in this Memorandum Order, the Court hereby denies AHMSA's petition and instructs AHMSA to further pursue service in accordance with the Hague Convention.
In its petition for alternative service, AHMSA describes the arbitration award and its ensuing efforts to serve the petition to confirm the award as follows. On May 22, 2014, an Arbitral Tribunal of the International Chamber of Commerce, International Court of Arbitration ("ICC") issued a Final Award of $89,000 in favor of AHMSA and against Rock Resource in the arbitration titled Rock Resource Limited v. Altos Hornos de Mexico, S.A.B. de C.V., ICC Case No. 18133/CYK. Memorandum of Law in Support of Motion for Alternative Service ("Pet. Br."), Dkt. 8, at 1-2; Petition to Confirm Arbitration Award Exhibit C. On March 6, 2015, AHMSA filed a petition to confirm the award pursuant to 9 U.S.C. §§ 9 and 207. Pet. Br. at 2; Petition to Confirm Arbitration Award. AHMSA emailed copies of this petition to Rock Resource's counsel in the underlying arbitration. Pet. Br. at 2. AHMSA then attempted to serve Rock Resource in Hong Kong, through the Hague Convention, at Rock Resource's address of record in the underlying arbitration. Pet. Br. at 2-3. On August 25, 2015, Hong Kong authorities informed AHMSA, via a company that AHMSA had instructed to implement service of process, that Rock Resource appeared to have moved out of its previous offices. Pet. Br. at 2-3. Hong Kong authorities suggested that AHMSA search the Hong Kong Companies Registry for a different address. Pet. Br. at 3. AHMSA found a different address for Rock Resource through this registry and was informed by the company implementing international service of process that it would take four to six months to re-attempt service of process under the Hague Convention at Rock Resource's address in the Hong Kong Companies Registry (the "registered address"). Pet. Br. at 3.
On September 3, 2015, AHMSA filed a motion for alternative service of process pursuant to Fed. R. Civ. P. 4(f)(3) and 4(h)(2), and served the papers on Rock Resource's counsel of record in the underlying arbitration. See Declaration of David L. Barres SI 13, Dkt. 7; Letter from David L. Barres, Sept. 3, 2015. Specifically, AHMSA in its motion seeks authorization to serve Rock Resource by postal channels at its registered office in Hong Kong, as well as by email on Rock Resource's arbitration counsel of record in China and the United States. See Pet. Br. at 1.
Federal Rule of Civil Procedure 4(f) provides that individuals in foreign countries may be served (1) "by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the [Hague Convention]"; (2) "if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice," including "as the foreign authority directs in response to a letter rogatory or letter of request"; and (3) "by other means not prohibited by international agreement, as the court orders." Fed. R. Civ. P. 4(f); see United States v. Lebanese Canadian Bank SAL et al., 285 F.R.D. 262, 265 (S.D.N.Y. 2012). Fed. R. Civ. P. 4(h) confirms that service of process on foreign corporations may be made using the same methods outlined in 4(f)(1) and 4(f)(3), among other provisions. See Fed. R. Civ. P. 4(h).
"Rule 4(f)(3) permits a court to authorize a means of service on a foreign defendant so long as that means of service is not prohibited by international agreement and comports with constitutional notions of due process." Devi v. Rajapaska, 11 Civ. 6634, 2012 WL 309605, at *1 (S.D.N.Y. Jan. 31, 2012). Further, " [g]enerally, there is no hierarchy among the subsections in Rule 4(f)," Advanced Aerofoil Technologies, AG v. Todaro, 11 Civ. 9505, 2012 WL 299959, at *1 (S.D.N.Y. Jan. 31, 2012), and a "plaintiff is not required to attempt service through the other provisions of Rule 4(f) before the Court may order service pursuant to Rule 4(f)(3)," S.E.C. v. Anticevic, 05 Civ. 6991, 2009 WL 361739, at *3 (S.D.N.Y. Feb. 13, 2009). Rather, "[t]he decision whether to allow alternative methods of serving process under Rule 4(f)(3) is committed to the sound discretion of the district court. . . . In exercising this discretion, district courts may 'impose a threshold requirement for parties to meet before seeking the court's assistance.'" Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 115 (S.D.N.Y. 2010), citing Ryan v. Brunswick Corp., 02 Civ. 0133E(F), 2002 WL 1628933, at *2 (W.D.N.Y. May 31, 2002). Accordingly, courts in this district have frequently imposed additional threshold requirements before authorizing alternative service under Fed. R. Civ. P. 4(f)(3), namely "(1) a showing that the plaintiff has reasonably attempted to effectuate service on the defendant, and (2) a showing that the circumstances are such that the court's intervention is necessary." Devi v. Rajapaska, 2012 WL 309605, at *1; see also Madu, 265 F.R.D. at 115.
In the instant case, the Court determines that service by postal channels at Rock Resource's registered office in Hong Kong would not be "prohibited by international agreement." Fed. R. Civ. P. 4(f)(3). The Hague Convention indicates that "[p]rovided the State of destination does not object, the present Convention shall not interfere with . . . the freedom to send judicial documents, by postal channels, directly to persons abroad." Hague Convention art. 10(a), November 15, 1965. The Second Circuit has interpreted the word "send" in Article 10(a) to mean "service." Ackermann v. Levine, 788 F.2d 830, 839 (2d Cir. 1986). Declarations regarding the Hague Convention that apply to the Special Administrative Region of Hong Kong do not include objection to service under Article 10(a). See Declarations Notifications, Special Administrative Region of Hong Kong; see also Dagen v. CFC Group Holdings, Ltd., 00 Civ. 5682, 2002 U.S. Dist. LEXIS 25767, at M6-M7 (S.D.N.Y. Mar. 7, 2002); Ackourey v. Noblehouse Custom Tailors, et al., 13 Civ. 2319, 2013 U.S. Dist. LEXIS 163535, at *7-*10 (E.D. Pa. Nov. 14, 2013). The Court concludes that service by postal mail at Rock Resource's registered address in Hong Kong is "not prohibited by international agreement." Fed. R. Civ. P. 4(f)(3).
The Court now turns to the issue of whether petitioner AHMSA has met the threshold requirements of showing (1) that it "has reasonably attempted to effectuate service on" Rock Resource, and (2) "that the circumstances are such that the court's intervention is necessary." Devi v. Rajapaska, 2012 WL 309605, at *1. As to the first requirement, AHMSA has reasonably attempted to effectuate service through email to counsel in the underlying arbitration and attempted service on the address of record in the underlying arbitration via the Hague Convention. See Pet. Br. at 2-3. As to the second requirement, however, AHMSA has not shown that the circumstances render the Court's intervention necessary. AHMSA could still seek to serve Rock Resource at its registered address through the Hague Convention. The availability of this option bears on the issue of whether alternative means of service are warranted. See, e.g., Lebanese Canadian Bank, 285 F.R.D. at 267; Devi v. Rajapaska, 2012 WL 309605, at *2; Prediction Co. LLC v. Rajgarhia, 09 Civ. 7459, 2010 WL 1050307, at *2 (S.D.N.Y. Mar. 22, 2010). Furthermore, given any potential confusion about Rock Resource's actual location, "a formal effort to serve defendant through the Hague Convention" - in the instant case, at Rock Resource's registered address - "will ensure that defendant has actual notice of the suit." Devi v. Rajapaska, 2012 WL 309605, at *2.
Therefore, the Court hereby denies AHMSA's motion for alternative service by postal channels at Rock Resource's registered address in Hong Kong. The Court further denies AHMSA's request for alternative service by email on Rock Resource's arbitration counsel of record in China and the United States, since AHMSA has already emailed to these counsel copies of the motion to confirm the arbitration award, as well as the current motion for alternative service. See Pet Br. at 2; Declaration of David L. Barres ¶ 13; Letter from David L. Barres, Sept. 3, 2015. However, if service through the Hague Convention at Rock Resource's registered address proves unsuccessful, then counsel for AHMSA are directed to phone Chambers, at which time the Court will consider the possibility of authorizing alternative service. SO ORDERED.
Dated: New York, NY
October 18, 2015
/s/_________
JED S. RAKOFF, U.S.D.J.