The case of the day is SA Luxury Expeditions, LLC v. Latin America for Less, LLC (N.D. Cal. 2015). SA Luxury Expeditions was a travel agency focusing on Latin America. It sued Bernard Schleien, a resident of Peru and a competitor, on a claim of unfair competition and computer fraud and abuse. SA sought to serve process by way of a letter rogatory under the Inter-American Convention (Peru is a party to the IAC but not the Hague Service Convention). However, SA was unable to get a status update from the Peruvian central authority, and so it sought leave to make service by alternate means under FRCP 4(f)(3).
In particular, SA sought leave to make service by personal delivery, by leaving a copy of the papers at his usual place of abode, or by delivering a copy to an agent authorized by appointment or law to receive service of process. These are the methods prescribed for service on an individual in the United States. The judge, correctly noting that the IAC is not exclusive, granted the motion.
This is an interesting approach. SA could have used personal delivery without leave of court under FRCP 4(f)(2)(C)(i), assuming Peruvian law does not forbid it. Leave of court was required to authorize service at Schleien’s last and usual place of abode, but assuming SA knows where he lives, it could have chosen service by mail under FRCP 4(f)(2)(C)(ii), again assuming Peruvian law doesn’t forbid it. But by bringing a motion for leave under FRCP 4(f)(3), SA relieved itself of the need to determine what Peruvian law permitted and what it forbade. Smart move, but one note of caution: if SA contemplates enforcement of an eventual jugment in Peru, it might be sensible to know in advance whether the method of service used comports with Peruvian law.