Case of the Day: Dow Chemical Co. v. Daniel

The case of the day is Dow Chemical Co. v. Daniel (E.D. Mich. 2014). Pablo Daniel Segismun Edelstein (the court calls him Edelstein, though the case is captioned Daniel) was a former employee of Dow. After he left the company, he sued Dow in Brazil on a wage and hour claim. Dow then sued Edelstein in the United States for breach of contract, fraudulent misrepresentation, and unjust enrichment. Edelstein moved to dismiss for insufficient service of process.

Dow had served the summons and complaint by Fedex to Edelstein’s residence in Uruguay (sent by the clerk). Uruguay is a party to the Inter-American Convention on Letters Rogatory and the Additional Protocol. Edelstein argued that Dow was required under the Convention to serve process by way of a letter rogatory, but the court correctly rejected that argument, noting that the Convention is non-exclusive.

Edelstein then argued that Uruguayan law prohibited service by mail. Under FRCP 4(f)(2)(C)(ii), service by mail is permissible “unless prohibited by the foreign country’s law.” The court held this to mean that service by mail is permitted unless expressly prohibited. In other words, it was not enough for Edelstein to show that Uruguayan law did not authorize service by mail. Thus the court denied the motion.

The court’s reading of FRCP 4(f)(2)(C)(ii) is the better reading, though some cases come out the other way. Here are a few lines from my chapter on service of process in the new ABA treatise on transnational litigation, which I am confident will be published one day. Footnotes are omitted.

How should the word “prohibited” in Rule 4(f)(2)(C) be interpreted? Is any method of service not expressly prescribed by foreign law forbidden? Or does the rule refer only to those methods of service expressly forbidden? The second construction is preferable. If Rule 4(f)(2)(C) prohibited all methods of service not expressly prescribed by the foreign law, then Rule 4(f)(2)(C) would have little if any practical application in light of Rule 4(f)(2)(A), which as already noted permits service “in the 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.”

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