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Walsh v. Denis

United States District Court, D. Connecticut

March 2, 2017

KENNETH G. WALSH
v.
THOMAS ST. DENIS

          RULING ON PLAINTIFF'S MOTION FOR ALTERNATE SERVICE [DOC. #28]

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.

         Pending 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 [Doc. #28].

         1. Background

         The Court presumes familiarity with the factual background of this mater, but briefly addresses the procedural history leading to the present motion.

         Plaintiff 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).[1] 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.

         On 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 ¶2.

         On 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.

         On 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. #26.[2] 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.

         2. Applicable Law

         Rule 4(f) of the Federal Rules of Civil Procedure sets forth the following procedures for serving an individual in a foreign country:

Unless federal law provides otherwise, an individual... may be served at a place not within any judicial district of the United States:
(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 notice:
(A) as prescribed by the foreign country's law for service in that country in an action in its courts of ...

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