Slip Op. 06 - 135
UNITED STATES COURT OF INTERNATIONAL TRADE
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UNITED STATES OF AMERICA, :
Plaintiff, :
v. :
FIRST COAST MEAT AND SEAFOOD and :
SHAPIRO PACKING CO.,
:
Defendants
Third-Party Plaintiffs, : Court No. 05-00281
v. :
CHRISTIAN MOELLER; CIPRIANO LTD.; :
DALIAN TANGMU SEAFOOD PRODUCTS CO.,
LTD.; GLOBAL FISHERIES PTE., LTD.; :
LIAONING ARTS AND CRAFTS IMPORT AND
EXPORT CORP.; and NHATRANG SEAPRODUCT :
CO.,
:
Third-Party Defendants.
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Memorandum & Order
[Third-party plaintiffs’ motion for appoint-
ment of agent for service of process abroad
granted in part.]
Dated: September 6, 2006
Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(David S. Silverbrand); and (Kevin Green) U.S. Customs and Border
Protection, of counsel, for the plaintiff.
DeKieffer & Horgan (J. Kevin Horgan) and Pelino & Lentz, P.C.
(John W. Pelino, Howard A. Rosenthal and Gary D. Fry) for the
defendants/third-party plaintiffs.
AQUILINO, Senior Judge: The above-named third-party
plaintiffs have amended a Consent Motion to Appoint Agent for
Court No. 05-00281 Page 2
Service of Process Abroad1 filed pursuant to USCIT Rules 4(c) and
4(f)(1) & (2) and Chapter 1, Article 3 of the Hague Convention on
the Service Abroad of Judicial and Extra-Judicial Documents in
Civil or Commercial Matters, Nov. 15 1965, 20 U.S.T. 361, to have
this court duly authorize and appoint as agent for service of
process abroad Ace International Services, Inc. to “ensure that a
U.S. judgment against [] third-party defendants will be recognized
and enforced by the foreign countries in which the third-party
defendants reside”.
I
The defendants have sought to implead via summons and
complaint Christian Moeller; Cipriano Ltd.; Dalian Tangmu Seafood
Products Co., Ltd.; Global Fisheries Pte., Ltd.; Liaoning Arts and
Crafts Import and Export Corp.; and Nhatrang Seaproduct Co.
Moeller and Cipriano are listed in the papers as having addresses
in Hong Kong; Dalian Tangmu Seafood Products Co. and Liaoning Arts
and Crafts Import and Export in the People’s Republic of China
(“PRC”); Global Fisheries in Singapore; and Nhatrang Seaproduct Co.
in the Socialist Republic of Vietnam.
The third-party plaintiffs take the position that, to
ensure that a U.S. judgment will be recognized and enforced in the
1
While this motion apparently has been consented to by the
plaintiff, there is no discernible consent on the part of any of
the putative third-party defendants.
Court No. 05-00281 Page 3
foreign countries in which the third-party defendants are located,
service must be perfected in accordance with the Hague Service
Convention or in accordance with the laws of a particular country.
It is to this end that they ask the court to appoint Ace
International Services, Inc., which apparently is incorporated in
the state of Rhode Island.
A
USCIT Rule 4(c)(1) permits this court to specially
appoint a person or officer to serve a summons and complaint at the
request of a party plaintiff. Rule 4(f) more specifically applies
to “service upon individuals in a foreign country”; subsection (1)
thereof is applicable where there are internationally-agreed-upon
means of service, and subsection (2) applies when there are no such
means. Hong Kong and the PRC have both acceded to the Hague
Service Convention2, whereas Singapore and Vietnam have not.
(1)
According to Rule 4(f), service
may be effected in a place not within any judicial
district of the United States:
(1) by any internationally agreed means reasonably
calculated to give notice, such as those means
2
The Hague Service Convention became effective in Hong Kong
on July 19, 1970 as a territory of the United Kingdom and then on
July 1, 1997 as a special administrative region of China. As for
the PRC, it had become effective on January 1, 1992. See 2005
Martindale-Hubbell® International Law Digest, pp. IC-5 and IC-12 to
13.
Court No. 05-00281 Page 4
authorized by the [Hague Service Convention]
. . ..
Article 3 of that Convention requires that
[t]he authority or judicial officer competent under the
law of the State in which the documents originate shall
forward to the Central Authority of the State addressed a
request conforming to the model annexed to the present
Convention, without any requirement of legalisation or
other equivalent formality.
Consistent therewith, the neighboring U.S. District Court
for the Southern District of New York, for example, instructs that
Defendants in . . . Hague Convention countries . . . may
be served by plaintiff=s counsel who sends the documents,
along with a completed USM-94 Form (available from the
United States Marshal) to the designated central
authority in the foreign country.
Instructions for Service of Process on a Foreign Defendant Pursuant
to FRCP 4(f) and the Foreign Sovereign Immunities Act, available
upon request from the District Court for the Southern District of
New York. Here, third-party plaintiffs’ counsel seek to transfer
their authority as judicial officers to Ace International Services,
Inc., which motion can be granted pursuant to this court’s
authority under its Rule 4(c)(1).
(2)
With regard to Global Fisheries Pte., Ltd. and Nhatrang
Seaproduct Co., CIT Rule 4(f) further provides that service
Court No. 05-00281 Page 5
may be effected in a place not within any judicial
district of the United States:
* * *
(2) if there is no internationally agreed upon
means of service or the applicable
international agreement allows other means of
service, provided that service is reasonably
calculated to give notice;
(A) in a manner prescribed by the law of
the foreign country for service in
that country in an action in any of
its courts of general jurisdiction;[3]
* * *
(C) unless prohibited by the law of the
foreign country . . ..
The third-party plaintiffs’ motion simply states that
Athe laws of foreign countries generally require that a summons and
complaint be served under the authority of the competent court
presiding over the relevant case@. Though perhaps true, a more
persuasive approach should entail specific reference to the laws of
Singapore and Vietnam (the two non-Convention states), which are
implicated by foregoing CIT Rule 4(f)(2).
3
CIT Rule 4(f)(2)(B) allows that service may additionally be
effected as directed by foreign authority in response to a written
request. However, there is no indication of such a request (or of
receipt of such direction).
Court No. 05-00281 Page 6
II
In sum, Ace International Services, Inc. is hereby
appointed to represent the third-party plaintiffs in this matter
for purposes of Article 3 of the Hague Convention on the Service
Abroad of Judicial and Extra-Judicial Documents in Civil or
Commercial Matters, Nov. 15 1965, 20 U.S.T. 361, but only with
regard to the putative third-party defendants Christian Moeller;
Cipriano Ltd.; Dalian Tangmu Seafood Products Co., Ltd.; and
Liaoning Arts and Crafts Import and Export Corp.
So ordered.
Dated: New York, New York
September 6, 2006
/s/Thomas J. Aquilino, Jr.__
Senior Judge