The case of the day is Latin American Theatrical Group, LLC v. Swen International Holding (C.D. Cal. 2013). Latin American filed a petition to confirm an arbitral award against Swen, a foreign corporation that had its offices in Panama. Latin American served process on Swen in Panama by mail. Panama is a party to the Inter-American Convention on Letters Rogatory and the Additional Protocol, but not to the Hague Service Convention. Swen moved to dismiss for insufficient service of process.

The judge noted that under Ninth Circuit precedent, service by mail under FRCP 4(f)(2)(C)(ii) was permissible only if the mail is sent by the clerk. The issue about whether the Hague Service Convention affirmatively authorizes service by mail without regard to FRCP 4(f)(2)(C)(ii) was irrelevant here given that Panama is not a party to the Convention. Swen argued that the service was permissible under FRCP 4(e) because that rule incorporates state law, and California law permits service by mail even if not sent by the clerk, but the judge properly rejected this argument on the grounds that FRCP 4(e) applies only to service within the United States.

The interesting point in the case came in a footnote. The court noted that § 9 of the FAA provides: “If the adverse party shall be a nonresident, then the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court.” According to the judge:

Courts have questioned the continuing validity of these rules—particularly where the respondent is located outside the United States—and have instead applied the Federal Rules of Civil Procedure to determine whether a petition to confirm arbitration has been properly served.

Okay, but the statute says what it says. I understand why courts would want to escape from the statute, particularly in light of the policy of the Federal Rules of Civil Procedure to relieve the Marshal of responsibility for service of process. But plaintiffs in confirmation cases who want to be super-careful and are not in a jurisdiction with an appellate case on point will consider serving process in accordance with the statute. See, e.g., Logan & Kanawha Coal Co., LLC v. Detherage Coal Sales, LLC, 789 F.Supp.2d 716 (S.D. W. Va. 2011) (requiring service by marshal).