The case of the day is DHL Global Forwarding Management Latin America, Inc. v. Pfizer, Inc. (S.D.N.Y. 2014). DHL Global and DHL Logistics Brasil Ltda sued Itau Seguros, S.A., Pfizer, Pfizer Global Trading, and Laboratorios Pfizer Ltda, seeking a declaratory judgment regarding the extent of DHL’s liability for a partially rejected shipment of pharmaceuticals. Itau, a Brazilian company, and Pfizer’s Brazilian affiliate moved to dismiss for insufficient service of process.
DHL served the summons and complaint on the Brazilian parties by mail (mail that DHL itself, rather than the clerk, sent). The judge correctly held that this service did not comply with FRCP 4(f)(2)(C)(ii) because the plaintiff, not the clerk, mailed the documents. Sometimes courts do not insist on strict compliance with this rule, but that’s generally when the clerk refuses to mail the documents or in some other way prejudices the plaintiff. Here there’s no indication that happened. The judge also correctly held that the service did not comply with FRCP 4(f)(3), because DHL did not first seek leave of court. No other provision of Rule 4 authorized the service, and therefore it failed, even though service by mail is permissible under the Inter-American Convention.
Nor was this a fixable problem. Under Second Circuit precedent, the 120-day time limit for service under FRCP 4(m) applies to service abroad if the plaintiff does not attempt service by an authorized method within the 120 days. Here, DHL did attempt service, but it did not do so by an authorized method. Therefore, the 120-day time limit applied, and since it had expired, the judge dismissed the action against the Brazilian defendants.