United States District Court, D. Massachusetts
ORDER ON PLAINTIFF'S RULE (4)(F)(3) MOTION TO
SERVE DEFENDANT WOLFGANG NEUBERGER THROUGH HIS COUNSEL (DKT.
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE
Angiodynamics, Inc. (“Angiodynamics”) filed a
motion for alternative service on defendant Wolfgang
Neuberger (“Neuberger”). Neuberger has not
responded. For the reasons set forth below, the court hereby
GRANTS Plaintiff's motion for leave to conduct
alternative service. Angiodynamics is authorized to serve
Neuberger by serving copies of the summons, the complaint,
and a copy of this order on attorney Edward Griffith, Esq.,
at The Griffith Firm, 45 Broadway - Suite 220, New York, N.Y.
10006 by registered mail, return receipt requested, and by
email at counsel's law office.
Rule of Civil Procedure 4(f) governs service on an
individual, such as Neuberger, who is in a foreign country.
Rule 4(f) “provides three disjunctive methods for
service abroad.” [Studio A Entm't, Inc. v.
Active Distribs., Inc., No. 1:06CV2496, 2008 WL 162785,
at *2 (N.D. Ohio Jan. 15, 2008) (quoting Sibley v. Alcan,
Inc., 400 F.Supp.2d 1051, 1055 n.8 (N.D. Ohio 2005))].
First, Rule 4(f)(1) allows for service by “any
internationally agreed means . . . that is reasonably
calculated to give notice, such as those authorized by the
Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents.” [Fed. R. Civ. P. 4(f)(1)].
Second, Rule 4(f)(2) provides that “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 provide
notice.” [Id. at (f)(2)]. Third, Rule 4(f)(3)
permits service by “other means not prohibited by
international agreement, as the court orders.”
[Id. at f(3)].
“Based upon the plain language of Rule 4(f)(3), the
only two requirements for service under that Rule are that it
must be (1) directed by the court, and (2) not prohibited by
international agreement.” [Lexmark Int'l v. Ink
Techs. Printer Supplies, LLC, No. 1:10-CV-564, 2013 WL
12178588, at *2 (S.D. Ohio Aug. 21, 2013) (citing Popular
Enters., LLC v. Webcom Media Grp., Inc., 225 F.R.D. 560,
561 (E.D. Tenn. 2004))]. Importantly, “courts have
consistently found that there is not a hierarchy among the
subsections of Rule 4(f).” [Id. (collecting
cases)]. “[A] plaintiff is not required to first
exhaust the methods contemplated by Rule 4(f)(1) and (2)
before petitioning the Court for permission to use
alternative means under Rule 4(f)(3).” [Id.,
at *2 (citing Studio A Entm't, 2008 WL 162785,
at *3; Flava Works, Inc. v. Does 1-26, No. 12 C
5844, 2013 WL 1751468, at *7 (N.D. Ill. Apr. 19, 2013);
Rio Props., Inc. v. Rio Int'l Interlink, 284
F.3d 1007, 1015 (9th Cir. 2002))].
Ahkeo Labs LLC v. Plurimi Inv. Managers LLP, Case
No. 1:17-CV-1248, 2017 WL 2793918 (N.D. Ohio, June 26, 2017)
(case citations in footnotes in original included in text);
see also Angiodynamics, Inc. v. Biolitec
AG, 780 F.3d 420, 429 (1st Cir. 2015) (addressing
adequacy of service under Rule 4(f)(3) of preliminary
injunction and contempt order on Neuberger and Biomed
Technology Holdings, Ltd.; “By its plain terms, Rule
4(f)(3) does not require exhaustion of all possible methods
of service by ‘other means,' such as service
through counsel and by email.”). “To pass
constitutional muster, a method 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.'” Hydentra HLP INT, Ltd. v. Sagan,
Ltd., No. CV-16-01494-PHX-DGC, 2017 WL 490371, at *1 (D.
Ariz. Feb. 7, 2017) (quoting Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950)).
“'While a plaintiff is not required to attempt
service through the other provisions of Rule 4(f) before the
Court may order service pursuant to Rule 4(f)(3), a district
court may nonetheless require parties to show that they have
reasonably attempted to effectuate service on the defendant,
and that the circumstances are such that the district
court's intervention is necessary.'” Ahkeo
Labs LLC, 2017 WL 2793918, at *2 (quoting Fed. Trade
Comm'n v. Repair All PC, LLC, No. 1:17 CV 869, 2017
WL 2362946, at *3 (N.D. Ohio May 31, 2017)). “[W]hether
to allow alternative methods of serving process under Rule
4(f)(3) is committed to the sound discretion of the district
court.” Freedom Watch, Inc. v. OPEC, 766 F.3d
74, 81 (D.C. Cir. 2014) (citation omitted); see also Rio
Props., Inc., 284 F.3d at 1014.
Reasons Justifying Alternative Service
extent it was required to do so before invoking Rule 4(f)(3),
Angiodynamics has adequately demonstrated that the
court's intervention is necessary. In prior related
litigation between Angiodynamics and Neuberger, the First
Circuit affirmed this court's order authorizing service
through counsel and by email, observing that:
The record demonstrates that [Angiodynamics] endeavored to
serve both Biomed and Neuberger in multiple countries on
multiple occasions and by various methods. Despite
[Angiodynamics's] repeated requests, Neuberger would not
authorize his counsel to accept service on his behalf,
despite his admitted awareness of the suit. [Angiodynamics]
tried to serve Biomed and Neuberger four times in Germany in
accordance with the Hague Convention, including an attempt at
a [Biolitec AG] shareholder meeting which Neuberger
unexpectedly failed to attend. After Defendants argued that
Neuberger and Biomed should have been served by registered
mail in Dubai and Malaysia, Plaintiff delivered service
documents by registered mail, with return receipt requested,
to Neuberger's address in Dubai and Biomed's
headquarters in Malaysia. Nevertheless, Neuberger and Biomed
refused to concede at the alternative service motion hearing
that these mailings effectuated service of process on them. .
. . Given that the district court was presented with
“an elusive international defendant striving to evade
service of process, ” the court acted within its
discretion when it authorized alternative service under Rule
Angiodynamics, Inc., 780 F.3d at 428-29 (quoting
Rio Props., Inc., 284 F.3d at 1016). Further, in a
related case pending here, this court recently authorized
plaintiff Angiodynamics to make service on Neuberger through
his counsel. Angiodynamics, Inc. v. Neuberger, No.
18-cv-30038-MGM, slip op. (D. Mass. filed July 12, 2018).
Angiodynamics as the plaintiff and Neuberger as a defendant
in the current case, the court has before it two of the
parties who were before the court in Angiodynamics v.
Biolitec AG, et al., Civil Action No. 09-cv-30181-MAP,
one of whom - Neuberger - has a well-documented history of
deliberately evading service of litigation documents.
Attorney Edward Griffith is listed as counsel for Neuberger
in docketing statements filed with the United States Court of
Appeals for the First Circuit beginning in June 2014. On
September 6, 2018, Mr. Griffith filed a brief on behalf of
Neuberger and others in the First Circuit (Dkt. No. 11 at 2,
¶ 11 & Exh. C). The court issued summonses in the
case at bar on June 20, 2018. On July 9, 2018, William
Reynolds, one of Angiodynamics's lawyers, asked Mr.
Griffith by email whether Mr. Griffith would accept service
on behalf of Neuberger of the complaint in the instant case
(id., ¶ 4). Mr. Griffith told Mr. Reynolds that
he was not authorized to accept service pf process in the
instant case (id., ¶ 6). On July 11, 2018, Mr.
Reynolds arranged for a waiver of service to be sent to
Neuberger by Federal Express. Mr. Reynolds sent an electronic
copy of the waiver of service to Mr. Griffith on the same day
(id., ¶¶ 5-6). Tracking records show that
the waiver of service of process was delivered to
Neuberger's Austrian business address on July 13, 2018.
Neuberger did not respond (id., ¶ 7). In a
subsequent conversation on September 6, 2018, Mr. Griffith
stated that he had spoken with Neuberger about the instant
action and that Neuberger refused to authorize Mr. Griffith
to accept service on Neuberger's behalf (id. at
2-3, ¶ 12).
history set forth above and pertinent case law support
authorizing alternative service on Neuberger in the new case
now before the court. In summary, Angiodynamics seeks
alternative service on Neuberger based on its past experience
with him, his refusal in the current case to accept service
of process through counsel who represent him in an appeal
pending in the First Circuit, and the court's
authorization of alternative service in prior actions
involving Angiodynamics and Neuberger as parties. One of the
decisions authorizing alternate service was affirmed by the
First Circuit on appeal. See Hydentra HLP INT., 2017
WL 490371, at *2 (authorizing alternative means of service
when the defendants' purposeful evading of service in an
earlier case between the same parties had resulted in the
court granting leave for alternative service in the earlier
case). Nothing has changed. Neuberger remains “'an
elusive international defendant striving to evade service of
process.'” Angiodynamics, Inc., 780 F.3d
at 429 (citing Rio Props., Inc., 284 F.3d at 1016).
Authorizing an alternative means of service will save time
and will not improperly disadvantage Neuberger.
process concerns are satisfied because Neuberger has actual
notice of this lawsuit through Mr. Griffith. It is not unfair
to require Neuberger, who continues to participate as a
litigant in an appeal pending in the First Circuit, to appear
before this court as a litigant in the current case. See
Akheo Labs LLC, 2017 WL 2793918, at *2 (service on the
defendant's attorney did not offend notions of due
process when defendants' lawyers already knew about the
suit and refused to accept service on their clients'
behalf); RSM Prod. Corp. v. Fridman, No. 06 Civ.
11512(DLC), 2007 WL 2295907, at *6 (S.D.N.Y. Aug. 10, 2007)
(declining to reconsider an order authorizing service on a
defendant by means of service on ...