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Reming v. Holland America Line Inc.

United States District Court, W.D. Washington, Seattle

February 28, 2014

GARY R. REMING and PATRICIA A. REMING, Plaintiffs,
v.
HOLLAND AMERICA LINE INC., a Washington corporation; HOLLAND AMERICA LINE N. V. a foreign corporation; HAL ANTILLEN N. V. a foreign corporation; HAL NEDERLAND N. V. a foreign corporation; and TROPICAL TOURS BAJA CABO, S.A. DE C.V, a foreign corporation, Defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR ALTERNATIVE SERVICE

ROBERT S. LASNIK, District Judge.

I. INTRODUCTION

This matter comes before the Court on plaintiffs' "Motion for Alternative Service" (Dkt. #145). Plaintiffs move to utilize alternative means to serve defendant Tropical Tours Baja Cabo, S.A. de C.V. (Tropical Tours), a Mexican corporation. Motion (Dkt. #145) at 2. Specifically, plaintiffs request leave to serve defendant through international mail and email in accordance with Fed.R.Civ.P. (Rule) 4(f)(2)(C)(ii) or 4(f)(3). Id . at 4. Plaintiffs also ask permission to serve defendant through its New York insurer, Chartis Insurance (AIG). Id.

The Court has reviewed the parties' submissions. For the reasons discussed below, the Court DENIES plaintiffs' motion for alternative service.[1]

II. DISCUSSION

A. Background

While on a Holland American cruise, plaintiffs went on a shore excursion in Mazatlan, Mexico. Third Amended Complaint (Dkt. #107) at 5. This excursion was organized by defendant Tropical Tours. Id . While ashore, the sidewalk collapsed under plaintiff Gary Reming, causing him to fall into a twenty-two foot deep subterranean pit. Id.

After filing suit against Holland America Line Inc. and a number of Holland America subsidiaries (collectively "Holland American Line Inc."), and Tropical Tours, plaintiffs attempted to serve Tropical Tours in Mexico in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("Hague Service Convention"). Motion (Dkt. #145) at 4. The Mexican Central Authority failed to serve defendant at any of the addresses provided by plaintiffs. See id. at 5-6. Plaintiffs were given additional time to serve Tropical Tours and this Court set September 25, 2013 as the deadline for perfecting service. Order (Dkt. #136) at 4.

B. Service Under Fed.R.Civ.P. 4

Under Rule 4(h)(2), a foreign corporation may be served "in any manner prescribed by Rule 4(f) for serving an individual." Fed.R.Civ.P. 4(h)(2). Rule 4(f)(1) provides that an individual "may be served at a place not within any judicial district of the United States by any internationally agreed means of service... such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents." Fed.R.Civ.P. 4(f)(1). As both the United States and Mexico are signatories to the Hague Service Convention, the Hague Service Convention provides "the exclusive means for service of process." See Volkswagenwerk Aktiengesellschaft v. Schlunk , 486 U.S. 694, 706 (1988); McCarty v. Roos, No. 2:11-CV-1538 JCM (RJJ), 2012 WL 6138313, at *10 (D. Nev. Dec. 7, 2012).

The primary service method under the Hague Service Convention is through the signatory's Central Authority. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters arts. 2, 3, 5, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (Hague Service Convention). After receiving a request, the Central Authority serves the documents through its own internal service of process mechanisms. Id . art. 5. If a State does not object, Article 10(a) permits foreign persons "the freedom to send judicial documents, by postal channels, directly to persons abroad." Id . art. 10(a). When Mexico acceded to the Hague Service Convention, it objected to the alternative methods of service as follows:

En relaciĆ³n con el articulo 10, los Estados Unidos Mexicanos no reconocen la facultad de remitir directamente los documentos judiciales a las personas que se encuentren en su territorio conforme a los procedimientos previstos en los incisos a), b) y c)....[2]

Accession (with Declarations) of Mexico to the Hague Service Convention, 2117 U.N.T.S. 318, 319 (2000). This declaration means that "service through Mexico's Central Authority-that is, its ministry of foreign affairs-is the exclusive means by which effective service may be accomplished in Mexico." McCarty, 2012 WL 6138313, at *11.

Plaintiffs have requested permission to undertake alternative service through two provisions: Rules 4(f)(2)(C)(ii) and 4(f)(3). Rule 4(f)(2)(C)(ii) permits service by international mail "if there is no internationally agreed means, or if an international agreement allows but does not specify other means." Fed.R.Civ.P. 4(f)(2)(C)(ii). As the Hague Service Convention applies, there is an ...


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