Hague Service via Email on Argentine Defendants Allowed By Certain District Courts under Certain Circumstances
In prior blog posts we discussed legal document translation services for international service of process under Federal Rule of Civil Procedure 4(f) and the disagreement among the district courts in the United States with respect to whether or not the Hague Service Convention allows service of process on foreign defendants via email. Below we look at three recent cases involving English to Spanish legal document translation services to service of process in Argentina, a signatory of the Hague Convention, but an objector to postal service of process. In all of these cases, service via email was allowed under the circumstances.
Online Auction Sued Argentine Individual for Failure to Pay
In Artnet Worldwide Corp. v. Gabriel Gruber, No. 21 Civ. 10459, 2023 WL 6390167 (SDNY) (hereinafter “Artnet”), an online auction service brought an action for breach of contract against Gabriel Gruber, an Argentine individual who bid, but failed to pay for certain artwork. The District Court for the Southern District of New York (SDNY) had to decide whether or not to grant Artnet’s motion for a default judgment.
Attempted Service Through Argentinian Central Authority
Artnet Worldwide Corp. (“Artnet”) filed suit in late 2021, and in early 2022 attempted to serve Gruber in Argentina under the Hague Convention. Artnet delivered English to Spanish translations of the Summons and Complaint to the Argentine Central Authority. The company that Artnet had hired to effect service had contacted the Central Authority twice in 2022 for an update on service, however despite these contacts, the international service of process company could not confirm whether or not Gruber had indeed been served.
Almost one year after filing suit, the SDNY entered a Clerk’s Certificate of Default, directed Artnet to apply for a default judgment and serve a copy to Gruber in Argentina. Artnet complied sending a copy of the default judgment application to the Argentine Central Authority and also mailing copies to Gruber’s last known mailing and email addresses. Artnet also noted in its papers that an attorney claiming to have been retained by Gruber had contacted Artnet’s counsel telling him that he was aware of the default judgment application and that Gruber intended to oppose it. Gruber neither opposed the motion for a default judgment nor did he appear in the action of submit any filings. Artnet was not able to confirm whether or not any of its submissions to the Argentine Central Authority ever were delivered to Gruber.
Was Artnet Entitled to a Default Judgment without Certificate of Service from Argentine Central Authority?
The issue the SDNY had to decide was whether or not Artnet was entitled to a default judgment despite not having confirmed service of process of the Summons and Complaint on Gruber via the Argentine Central Authority. The SDNY concluded that entry of a default judgment against Gruber was appropriate.
The SDNY reviewed Article 15 of the Hague Service Convention which lists the conditions that must be met before a default judgment may be entered against a foreign defendant:
(1) the document was transmitted by one of the methods provided for in the Convention;
(2) a period of time not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document; and
(3) no certificate of any kind has been received even though every reasonable effort has been made to obtain it through the competent authorities of the state addressed.
In Artnet, the SDNY found all of the conditions under Article 15 had been met. First, Artnet delivered the Summons and Complaint to the Argentine Central Authority for service on Gruber. Second, more than one a a half years had elapsed since the delivery of the documents. Third, Artnet never received a certificate of service even though it made every reasonable effort to obtain one. Additionally, there had been constitutional due process because Gruber was aware of the action since Artnet had mailed and emailed papers to Gruber’s last known addresses and there had been contact by Gruber’s attorney indicating he would oppose the motion for a default judgment even though he did not. The SDNY entered a default judgment in Artnet’s favor since Article 15 had been satisfied.
Lamborghini Sued Argentine Individual for Trademark Infringement
Automobili Lamborghini S.p.A. v. Garcia, 467 F.Supp 3d 385 (E.D. Va. 2020) (hereinafter “Lamborghini”) involved Garcia, an Argentine individual, who was sued by the Italian car brand for allegedly marketing and selling counterfeit Lamborghini-branded goods in the US online. Here, too, Automobile Lamborghini S.p.A. (“Lamborghini”) moved for a default judgment.
Attempted Service Through Argentine Central Authority
Lamborghini had attempted to serve Garcia under the Hague Convention several times between May and December 2018, but Garcia evaded service. When Argentine authorities tried to serve Garcia at his last known address, they found it vacant and under construction. Garcia and his attorney were in communication with Lamborghini at that time, but they ignored inquiries concerning service of the complaint. The District Court for the Eastern District of Virginia allowed service by email under these circumstances.
Was Lamborghini Entitled to a Default Judgment When Service Through Argentine Central Authority was Unsuccessful?
In Lamborghini, Garcia opposed the motion for a default judgment arguing that service had been improper and not in accordance with the Hague Convention. The district court reviewed the standard for constitutional due process (“notice 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. Central Hanover Bank & Trust Co., 339 US 306, 314 (1950)).
The district court explained that while Argentina opposed service by postal mail under the Convention, the objection is limited to the means listed in Article 10, which do not include email. The district court pointed to other court decisions allowing service by email when Hague service is unsuccessful.
In Lamborghini, this is exactly what had occurred. Two international service of process firms had spent almost one year trying to serve Garcia under the Hague Convention, but could not. Garcia’s last known address was vacant and under construction. Additionally, Garcia had been communicating with Lamborghini via email during the time authorities were trying to serve him. Also, Garcia never challenged the original complaint for improper service. At a certain point, Garcia even requested that all case-related notifications be sent to him by email. Under these circumstances, the district court found Garcia had no basis to argue he had no notice of the action against him.
US Company Sues Argentine Company for Breach and other Causes of Action
Goddess Approved Productions, LLC v. Wolox and Sirvart SA, No. 20-1697, 2021 WL 11678467 (D. Del.) (hereinafter “Goddess”), involved a motion by Goddess Approved Productions, LLC (“Goddess”) to allow alternate method of service in Argentina and Uruguay. Goddess had filed sued alleging breach of contract and other causes of action.
Hague Service During COVID Pandemic Could Take Many Months
Goddess had filed a complaint at the end of 2020 and allegedly was in discussions with an attorney representing the defendant companies (Larrarte) during which there was an agreement to hold off on service while the companies reviewed the complaints and to see whether the attorney would accept service on their behalf. Goddess’s counsel emailed Larrarte a copy of the Summons, Complaint, and Waiver of the Service of Summons Forms for both companies. Larrarte responded explaining settlement discussions were over and he would not accept service. Later, Goddess served Wolox by certified mail at its principal place of business in San Francisco, CA. Goddess also contacted service of process companies in Buenos Aires, Argentina. All of them estimated that Hague service during COVID could take 6 to 12 months and perhaps even 12 to 24 months.
Could Goddess Serve Defendants by Alternative Means?
Under FRCP 4(f), the court reasoned that Goddess could serve the defendant companies “by other means not prohibited by international agreement, as the court orders.” With respect to Uruguay, the court could not find an international agreement that prohibited service by mail on a corporation in Uruguay. The district court concluded that service by mail in Uruguay would also satisfy constitutional due process requirements as it is “reasonably calculated” to inform Sirvart of the action.
Wolox (an Argentine corporation) was another matter. Service by postal mail on Wolox would not be appropriate according to the court because Argentina had objected to service via postal mail. Alternatively, Goddess requested to serve Wolox via email or on the Delaware Secretary of State.
The district court explained that the courts are split on the issue of whether or not “postal channels” also means an objection to service via email, but it noted that a majority of district courts have concluded that an objection to service by postal mail does not mean an objection to email service. It also explained that several courts in the Third District have found that an objection to service by postal mail nonetheless allows service by email. It further noted that district courts have found email service comports with due process requirements and is appropriate. It explained that district courts have authorized a wide variety of service methods besides postal mail as alternate service methods. Email was appropriate in Goddess, the district court concluded, because Goddess had already made efforts to serve Wolox via email and postal mail in San Francisco.
Get in touch with the legal translation, deposition interpreting and Apostille services company All Language Alliance, Inc. to obtain certified Spanish translation of the Summons; Complaint, and other English legal documents for the service of process in Argentina.
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