The case of the day is Commodity Futures Trading Commission v. Rubio (S.D. Fla. 2012). The CFTC sued Jose S. Rubio, alleging that he had misused investor funds to pay his personal debts and expenses. The CFTC attempted service at Rubio’s last known addresses, but it was unsuccessful. Rubio had been questioned under oath during a parellel investigation by the Florida Office of Financial Regulation, and in that testimony he had given a yahoo.com email address. The government had attempted to send emails to Rubio at that address and had received successful delivery confirmations. The confirmations indicated that they were sent from a Digicel Blackberry—Digicel is “a mobile telecommunication provider that operates primarily in the Carribbean, Central and South America.”

On these facts, the CFTC sought leave to make alternative service by email under FRCP 4(f)(3). The government asserted that Rubio was likely residing outside of the United States. The judge granted the motion, correctly recognizing that if Rubio was residing in a state party to the Hague Service Convention, the Convention would not apply because Rubio’s address was unknown and that if Rubio was residing in an Inter-American Convention state, that Convention is not exclusive and thus would not bar service by email. The judge found that in light of Rubio’s testimony email to the yahoo.com address was reasonably calculated to reach him.

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