TracFone Wireless, Inc. v. Bitton, 278 F.R.D. 687 (S.D. Fla. 2012)

Plaintiff wireless telephone service TracFone Wireless, Inc. (“TracFone”) brought an action alleging the unlawful purchase and resale of TracFone prepaid airtime minutes in the District Court for the Southern District of Florida.  TracFone made a motion seeking to effect service of process on two Defendants, a Canadian resident and a Vietnamese resident, by four different means under Rule 4(f) of the Federal Rules of Civil Procedure: (1) service by international mail to the Quebec Central Authority on the Canadian Defendant; (2) service via FedEx directly on both Defendants sent by the Clerk’s Office; (3) service via FedEx directly on both Defendants sent by TracFone; and (4) service via email on the Vietnamese Defendant.  The district court granted the motion.

First, the court directed the Clerk’s Office to effectuate service via international mail to the Canadian Defendant by request to the Quebec Central Authority pursuant to Rule 4(f)(1) and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”).  The Court reasoned that Canada had established a Central Authority for the province of Quebec designated pursuant to Article 2 of the Hague Service Convention to receive requests for service from other contracting States.  Moreover, Canada did not object to service by mail.

Second, the court also found it permissible for TracFone to serve process on both non-resident Defendants via FedEx, sent by the Clerk’s office, pursuant to Rule 4(f)(2)(C)(ii).  The court reasoned that with respect to the Canadian Defendant, neither the Hague Service Convention nor Canadian law prohibited such direct service.  With respect to the Vietnamese Defendant, the court found that there is “no internally agreed means” under Rule 4(f)(2)(C)(ii) for service (as Vietnam is not a signatory to the Hague Service Convention), nor did Vietnamese law prohibit such service. 

Third, and similarly, the court held that TracFone may serve directly, by FedEx, both Defendants, pursuant to Rule 4(f)(3), which allows “other means not prohibited by international agreement, as the court orders.”  The court reasoned that neither the Hague Service Convention, Canadian law, nor Vietnamese law prohibited direct service via FedEx, and that such service comports with due process requirements because it is reasonably calculated to apprise Defendants of the pendency of the action and affords an opportunity to present objections. 

Last, the court held that under Rule 4(f)(3), TracFone also could serve the Vietnamese Defendant via email.  The court reasoned that no international law prohibited TracFone from serving the Vietnamese Defendant via email, and that email service satisfies due process requirements.