The case of the day is Ure v. Oceania Cruises, Inc. (S.D. Fla. 2015). Diana Ure was a passenger aboard Oceania’s ship. She fell ill and was treated by one of the defendants, Dr. Fabian Bonilla, an Ecuadoran national. She and her husband sued Bonilla, apparently for medical malpractice, and she served him at his address in Ecuador via mail (sent by the clerk, as FRCP 4(f)(2)(C)(ii) requires). Bonilla moved to dismiss, arguing that Ecuadoran law forbids service by mail.
Ure offered an affidavit on the question of Ecuadoran law that went unrebutted, and so I will assume, as did the court, that in fact Ecuadoran law does forbid service by mail. Ecuador is a party to the Inter-American Convention on Letters Rogatory and its Additional Protocol, but not to the Hague Service Convention. The Inter-American Convention is not exclusive, and so Ure was not required to serve Bonilla via the Convention. However, FRCP 4(f)(2) authorizes methods of service including service by mail only if not forbidden by the law of the foreign country. Since Ecuadoran law forbids service by mail, Bonilla’s argument was sound, and the court granted his motion.
The judge went a little too far when he wrote that “all of the options for service under Rule 4(f) require that the particular method of service is not prohibited by the law in the country in which service will be effectuated.” That is expressly not true of FRCP 4(f)(3), which allows methods of service, with leave of court, that do violate foreign law, but not methods of service that violate treaties.
Cases like this illustrate a practical point. When in doubt about the permissibility of a method of service in a particular country, and if there is no special need for speed, it is always safer, though almost always slower, to use an available convention to serve process. Indeed, even if you manage to serve process without incident or apparently without incident, use of a non-Convention method can come back to haunt you when you try to obtain recognition and enforcement of the US judgment in the foreign country. In some cases, there is enough at stake to warrant getting an opinion from foreign counsel about permissible methods of service and about the effect of methods of service on enforceability. But when in doubt, stick with the Conventions.