GhostBed, Inc. v. Casper Sleep, Inc., 315 F.R.D. 689 (S.D. Fla. 2016) [click for opinion]
Plaintiffs GhostBed, Inc. ("GhostBed") and Werner Media Partners, LLC d/b/a Nature's Sleep LLC ("Nature's Sleep") sued foreign defendants for infringement of trademark rights, cybersquatting, and unfair competition under Florida and federal law. Plaintiff alleged that the registration and use of the www.naturesleep.com web domain (the "Cybersquatted Domain") by Defendant ICS, Inc. ("ICS"), and its cooperation with other defendants, injured Plaintiffs. Plaintiffs sought entry of an Order, pursuant to Federal Rule of Civil Procedure 4(f), granting Plaintiffs leave to serve process on ICS via international mail at its last-known address in the Cayman Islands. The magistrate granted Plaintiffs' motion. In doing so, the magistrate recognized that Rule 4(f) provides three methods for serving an individual in a foreign country: (1) by internationally agreed means, such as those authorized by the Hague Convention on Service of Process; (2) by a means reasonably calculated to give notice permitted by the foreign country's law; or (3) by other means committed to a court's discretion that are not prohibited by international agreement. In this case, international mail was permissible under all three methods for serving an individual under Rule 4(f).
First, the magistrate found that service via international means complies with Rule 4(f)(1) because the United Kingdom—and therefore the Cayman Islands—is a signatory of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (the "Hague Convention"). Because service of process through postal channels is allowed under Article 10(a) of the Hague Convention, and because the United Kingdom has not objected to Article 10(a), Plaintiffs' request to serve ICS with a copy of the complaint and summons via international mail was granted. Second, the magistrate found that service via international mail was also permissible under Rule 4(f)(2). Rule 4(f)(2) provides, in pertinent part, that if not prohibited by federal law or the foreign country's law, service may be made using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt. Again, because service via international mail did not violate the Hague Convention, to which Cayman Islands is a signatory, the magistrate also found that Plaintiffs' requested method of service complied with Rule 4(f)(2).
Finally, the magistrate found that service via international mail was also permissible under Rule 4(f)(3), which provides for service to be made by other means not prohibited by international agreement. Under Rule 4(f)(3), the court is required to examine three factors in determining whether to exercise its discretion and permit alternative service. First, the court must be satisfied that the proposed method of service is reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Second, the court must determine that the proposed method of service minimizes offense to foreign law. And, third, the court must determine that the facts and circumstances warrant exercise of its discretion.
As to the first factor, the magistrate was satisfied that international mail would provide notice to ICS, as the address was provided by ICS when registering the Cybersquatted Domain. As to the second factor, the magistrate recognized that a proposed alternative method of service is not offensive to the forum's law if such method is not expressly prohibited by the forum's law. Because service via international mail is in compliance with Cayman Islands law through the Hague Convention, the magistrate determined that the second factor was also satisfied. The magistrate also found that the facts and circumstances warranted exercise of the court's discretion under Rule 4(f).
Finally, the magistrate granted Plaintiffs permission to file a copy of the international mail "proof of signature" as proof that service had been effectuated pursuant to Rule 4(f)(2)(B), which provides that when service is made pursuant to Rule 4(f)(2) of 4(f)(3), service may be proved by a receipt signed by the addressee, or by other evidence satisfying the court that summons and complaint were delivered to the addressee. The magistrate determined that such a receipt complies with the goal of Rule 4(f)(2)(B).
Accordingly, the magistrate granted Plaintiffs' motion to serve ICS via international mail under Rule 4(f), directing the clerk of court to dispatch a copy of the summons and complaint under Rule 4(f)(2). The magistrate also granted Plaintiffs leave to serve ICS with international mail pursuant to Rule 4(f)(1) and 4(f)(3), and to file a copy of the international mail "proof of signature" as proof, pursuant to Rule 4(f)(2)(B), that service had been effectuated on the foreign defendant.