United States District Court, D. Connecticut
KENNETH G. WALSH
THOMAS ST. DENIS
RULING ON PLAINTIFF'S MOTION FOR ALTERNATE
SERVICE [DOC. #28]
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
before the Court is the motion of plaintiff Kenneth G. Walsh
(“plaintiff”) for permission to serve defendant
Thomas St. Denis (“defendant”) by alternative
means pursuant to Federal Rule of Civil Procedure 4(f)(3).
[Doc. #28]. Plaintiff also requests, if necessary, additional
time in which to serve defendant under Federal Rule of Civil
Procedure 4(m). See Id. (hereinafter the
“Motion for Alternate Service”). On February 14,
2017, Judge Alvin W. Thompson referred this motion to the
undersigned. [Doc. #29]. For the reasons articulated below,
the Court GRANTS plaintiff's Motion for Alternate Service
Court presumes familiarity with the factual background of
this mater, but briefly addresses the procedural history
leading to the present motion.
commenced this action on June 16, 2016. [Doc. #1]. On
September 2, 2016, plaintiff, having conflicting information
regarding defendant's whereabouts, attempted service of
the Complaint on defendant via Connecticut's long-arm
statute, Conn. Gen Stat. §52-59b(c). See Doc. #20 at
3; see also Doc. #7 (return of process). Defendant has not
filed an appearance in this matter or answered the Complaint.
October 6, 2016, plaintiff filed a motion for entry of
default pursuant to Federal Rule of Civil Procedure 55(b)
[Doc. #8], which the Clerk of the Court granted on October
12, 2016 [Doc. #13]. On November 14, 2016, plaintiff filed a
motion for default judgment pursuant to Federal Rule of Civil
Procedure 55(b). [Doc. #12]. Defendant has not responded to
this motion. On December 21, 2016, Judge Thompson referred
the motion for default judgment to the undersigned. [Doc.
#15]. On December 22, 2016, this Court entered an Order
scheduling an evidentiary hearing on the motion for default
judgment, which required plaintiff to submit a pre-hearing
memorandum of law. See Doc. #18. This Order required
plaintiff to provide the Court with specific information,
including: “a discussion of how service of process of
the complaint was accomplished, with supporting affidavits if
necessary, and the legal authority explaining why that
service of process was sufficient[.]” Id. at
January 10, 2017, counsel for plaintiff caused the
Court's December 22, 2016, Order to be served on an
address believed to belong to defendant via Federal Express,
international priority. See Doc. #21. On January 20, 2017,
the Court held an evidentiary hearing on plaintiff's
motion for default, at which defendant did not appear. [Doc.
#24]. At the time of the January 20, 2017, evidentiary
hearing, it was unclear whether the Federal Express package
had been delivered to defendant at his claimed address in
Brazil. Counsel for plaintiff represented that the
Court's Order had additionally been sent to defendant via
two separate email addresses.
January 30, 2017, the Court entered an order regarding the
sufficiency of service of process in this matter, as the
Court was unable to determine whether service of process had
been sufficient. See Doc. #26. Specifically, the Court found
that, “if, at the time process was served, defendant
was residing in Brazil, the record does not clearly
demonstrate that plaintiff employed the appropriate means by
which to serve a defendant in a foreign country.” Doc.
As such, the Court ordered plaintiff to “supplement the
record with any evidence that service of process on defendant
was sufficient[, ]” and at plaintiff's option, to
provide “additional legal authority supporting the
sufficiency of service of process.” Id. at
6-7. In response to this Order, plaintiff
“acknowledge[d] that service of process, although
attempted in good faith, ha[d] been unsuccessful.” Doc.
#28 at 1. Accordingly, because defendant purportedly now
resides in Brazil, plaintiff moves for permission to
effectuate service by alternative means pursuant to Federal
Rule of Civil Procedure 4(f)(3). See Doc. #28. Plaintiff also
seeks additional time in which to serve defendant, pursuant
to Rule 4(m), if necessary. See id.
4(f) of the Federal Rules of Civil Procedure sets forth the
following procedures for serving an individual in a foreign
Unless federal law provides otherwise, an individual... may
be served at a place not within any judicial district of the
(1) by any internationally agreed means of service that is
reasonably calculated to give notice, such as those
authorized by the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents;
(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
(A) as prescribed by the foreign country's law for
service in that country in an action in its courts of ...