GRADO v. MEDICAL INDUSTRIAL AND SCIENTIFIC PRODUCTS CORPORATION (2024)

ORDER

This cause is before the Court on Plaintiffs’ Motion for Leave to Serve Defendants Jose Rodriguez and Medical, Industrial, and Scientific Products Corporation by Alternative Means (Doc. 28). In that motion, Plaintiffs seek leave under Federal Rule of Civil Procedure 4(f)(3) to serve these two defendants, who are purportedly located in Brazil, by email. For the reasons discussed briefly below, the Court GRANTS the Motion, (Doc. 28), and gives Plaintiffs leave to serve a summons and copy of the Amended Complaint on Defendants Rodriguez and Medical, Industrial, and Scientific Products Corporation (MIS) using the following email addresses: jrodig9457@icloud.com and jrodrig9457@me.com.

Service in this matter has proven difficult, at least in part. Plaintiffs Gordon Grado, M.D., and Centro de Especialidad Oncologica (collectively Grado) sued four defendants, essentially consisting of two sets of two defendants each. The first pair is Jordan Medical Group ¹ and its alleged owner, Suleiman A. Refaei. The second pair, and the one at issue here, is MIS and its alleged owner, Rodriguez. Service on the first pair went off without a hitch, perhaps not surprisingly, as it turns out both the entity and its owner are citizens of Ohio. (Doc. 27).

But the same was not true of the second pair. Believing that Rodriguez lived in Chicago, Grado sought to serve him (and his company, MIS) by various means there. Those efforts failed. A later email, appearing to be from Rodriguez, showed why that may be the case. It seems that in October 2023, months before Grado filed suit, Rodriguez relocated from his former address in Chicago (the address at which Grado sought to serve him) to Brazil, where he apparently resides now and intends to remain. (Doc. 28-3). Exactly where in Brazil, though, seems to be an open question, as the email from Rodriguez did not supply a physical address, and Grado asserts he does not have any additional information on that front.

Unable to serve him (or his company) in Illinois, Grado now turns to the Court for assistance. In particular, Grado asks the Court to authorize service by alternative means under Federal Rule of Civil Procedure 4(f)(3). And the “alternative means” that Grado specifies is service by email on (1) the email address from which Grado received the email from Rodriguez, and (2) another email address for Rodriguez listed in the signature block of that first email.

Federal Rule of Civil Procedure 4(f) governs attempts to serve individuals ² located outside the United States, and it provides three options—(f)(1), (f)(2), and (f)(3). While the rule seems straightforward, the propriety of authorizing service under Federal Rule of Civil Procedure 4(f)(3) is a trickier question than it may appear at first blush. For example, an initial question is whether a plaintiff must first exhaust efforts under Rules 4(f)(1) and 4(f)(2), before seeking to serve under Rule 4(f)(3). This Court recently suggested the answer to that is “no.” See AmaTech Grp. Ltd. v. Fed. Card Servs., No. 1:21-cv-406, 2022 WL 44674, at *12 (S.D. Ohio Jan. 5, 2022). But other courts disagree. And even some courts that do not impose a strict hierarchy suggest that “[i]f the Hague Service Convention applies, and use of its procedures is mandatory, a court may authorize alternative service under Rule 4(f)(3) only in special circumstances, such as if the foreign nation refuses to serve a complaint or fails to serve it within six months.” Woods v. Morris Mohawk Gaming Grp., No. 3:23-cv-53, 2024 WL 3540428, at *2 (E.D. Ky. July 25, 2024) (cleaned up); Noco Co. v. CF Grp. SZKMS Co., Ltd., 571 F. Supp. 3d 862, 868 (N.D. Ohio 2021) (“Accordingly, under Rule 4, if the Hague Convention applies, a party must first attempt service by the means designated in the Convention.”).

As was the case in AmaTech, the Court concludes here that there is no strict hierarchy among the subsections of Rule 4(f). In other words, a court may resort to Rule 4(f)(3) “without first considering Rule 4(f)(1) and 4(f)(2).” AmaTech, 2022 WL 44674, at *12. And as for the possible exception to that rule where the Hague Convention applies, that Convention by its own terms does not apply when a defendant's address is not known, as is the case here. See Hague Service Convention, art. 1, 20 U.S.T. 361. (“This Convention shall not apply where the address of the person to be served with the document is not known.”). Either way, the Court ends up at Rule 4(f)(3), which allows service “by other means not prohibited by international agreement.” Fed. R. Civ. P. 4(f)(3). And the Court is unaware of any international agreement with Brazil that prevents email service of a person residing there.

The next question under Rule 4(f)(3) is whether the Court should order such service on the facts here. After all, the question of alternative service under Rule 4(f)(3) is committed to the sound discretion of the district court. Woods, 2024 WL 3540428, at *2. And as a general matter, before seeking alternative service, a party must show that they have undertaken reasonable efforts “to effectuate service on the defendant, and that the circumstances are such that the district court's intervention is necessary.” Noco Co., 571 F. Supp. 3d at 868 (quotation omitted). The Court concludes Grado has done so here. He tried multiple times to complete service at Rodriguez's (now former) Chicago address. Further, Grado does not have an address for Rodriguez in Brazil; absent that, it is unclear how Plaintiffs could physically serve Rodriguez.

Of course, in considering alternative service, the Court also must be mindful of the means that the plaintiff proposes for effecting that service. After all, “[s]ervice requirements are more than mere technicalities, they also implicate due process.” Savoie v. City of East Lansing, No. 21-2684, 2022 WL 3643339, at *2 (6th Cir. Aug. 24, 2022). As a result, the Supreme Court has instructed that the form of service 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.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). But that concern is met here, as well. From the email exchanges that Grado attaches to his motion, it appears that the email addresses Grado has will be a reliable means of notifying these two defendants of the pendency of this action.

Beyond that, the Court also notes another factor that weighs in favor of alternative service by email. It may be one thing to serve a foreign national who has never set foot in this country by email and expect him to appear and defend. But the action here arises out of conduct that allegedly occurred while Rodriguez lived (and the company he owned thus operated) in this country.

In sum, the Court concludes (1) that it has the discretionary authority under Rule 4(f)(3) to authorize alternative service, (2) that on the facts here the Court should exercise its discretion to allow such service, and (3) that the proposed method of service is reasonably calculated to apprise these two defendants of the pendency of this action and afford them an opportunity to respond. Accordingly, the Court GRANTS the Motion for Leave to Serve Defendants Jose Rodriguez and Medical, Industrial, and Scientific Products Corporation by Alternative Means (Doc. 28), and gives Plaintiffs leave to serve a summons and copy of the Amended Complaint on Defendants Rodriguez and MIS using the following email addresses: jrodig9457@icloud.com and jrodrig9457@me.com. The Court notes, though, that its authorization of such service does not prohibit Defendants from raising any other defenses, such as challenges to personal jurisdiction or venue.

SO ORDERED.

FOOTNOTES

1.   Plaintiffs originally named Jordan Medical Group, Inc., (see Doc. 1), when the correct entity name was Jordan Medical Group, LLC. But Plaintiffs have since corrected that mislabeling through an Amended Complaint (Doc. 11).

2.   One of the two defendants here is a business entity. Service of business entities outside the United States falls under the purview of Rule 4(h)(2). But that rule in turn incorporates (with minor exceptions not applicable here) Rule 4(f). See Fed. R. Civ. P. 4(h)(2) (allowing service on an entity “at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual.”). So the focus of the Court's Order is on Rule 4(f).

DOUGLAS R. COLE, UNITED STATES DISTRICT JUDGE