Ure v. Oceania Cruises, Inc., No. 14-21340-CIV (S.D. Fla. Aug. 18, 2015) [click for opinion]
Plaintiff Diane Ure suffered an illness while onboard a cruise. She was treated by Dr. Fabian Bonilla, the ship’s physician. Due to the alleged mismanagement of her illness by Dr. Bonilla, Ure suffered permanent injury. Ure filed suit against Dr. Bonilla in Florida, and Dr. Bonilla moved to quash service of process and dismiss the complaint for lack of personal jurisdiction.
Dr. Bonilla is a citizen of Ecuador. He was sent a copy of the complaint by the Clerk’s office via Federal Express to his address in Quito, Ecuador. Citing the Convention on Private International Law (the “Bustamante Code”), Dr. Bonilla contended that the only accepted method of service in Ecuador is through exhorts or letters rogatory. The court noted that the United States is not a signatory to the Bustamante Code, but is a party to the Inter-American Convention on Letters Rogatory (the “Inter-American Convention”).
Service via the Inter-American Convention is not mandatory, however. The court thus considered whether Ure’s service on Dr. Bonilla was sufficient under the Federal Rules of Civil Procedure or relevant state statutes. Under Federal Rule of Civil Procedure 4(f), service must comply with the law of the country in which service is attempted. The court found that Ure’s attempt to serve Bonilla via Federal Express was contrary to local law, citing the affidavit of Bonilla’s Ecuadorian attorney, which stated that “foreign service via registered or certifying postal or mail messages, is not permitted within Ecuadorian legislation….” Ure did not submit any evidence contradicting the affidavit.
The court also found that Ure had failed to properly serve Dr. Bonilla under Florida law. The Florida statute at issue applies only if the complaint alleges specific facts indicating a defendant’s business activity in the state of Florida. Ure did not sufficiently allege such facts.
The court thus granted Dr. Bonilla’s motion to quash service, and held that the motion to dismiss for lack of personal jurisdiction was moot.
John Kosmidis of the Washington, DC office contributed to this summary.