Case of the Day: CFTC v. Rubio

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The case of the day is Commodity Futures Trading Commission v. Rubio (S.D. Fla. 2012). The CFTC sued Jose S. Rubio, alleging that he had misused investor funds to pay his personal debts and expenses. The CFTC attempted service at Rubio’s last known addresses, but it was unsuccessful. Rubio had been questioned under oath during a parellel investigation by the Florida Office of Financial Regulation, and in that testimony he had given a email address. The government had attempted to send emails to Rubio at that address and had received successful delivery confirmations. The confirmations indicated that they were sent from a Digicel Blackberry—Digicel is “a mobile telecommunication provider that operates primarily in the Carribbean, Central and South America.”

On these facts, the CFTC sought leave to make alternative service by email under FRCP 4(f)(3). The government asserted that Rubio was likely residing outside of the United States. The judge granted the motion, correctly recognizing that if Rubio was residing in a state party to the Hague Service Convention, the Convention would not apply because Rubio’s address was unknown and that if Rubio was residing in an Inter-American Convention state, that Convention is not exclusive and thus would not bar service by email. The judge found that in light of Rubio’s testimony email to the address was reasonably calculated to reach him.

Photo credit: Kim Carpenter

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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