United States District Court

For the Northern District of California

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ORDER DENYING MOTION FOR ORDER PERMITTING ALTERNATIVE SERVICE OF PROCESS WITHOUT PREJUDICE—No.

C-08-02658 RMW

CCL

United States District Court

For the Northern District of California

E-FILED on 7/29/10

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

MANDANA D. FARHANG and M.A.

MOBILE,

Plaintiffs,

v.

INDIAN INSTITUTE OF TECHNOLOGY,

KHARAGPUR; TECHNOLOGY

ENTREPRENEURSHIP AND TRAINING

SOCIETY; PARTHA P. CHAKRABARTI;

PALLAB DASGUPTA; GURASHISH S.

BRAR; RAKESH GUPTA; PRAVANJAN

CHOUDHURY; SUBRAT PANDA;

ANIMESH NASKAR,

Defendants.

No. C-08-02658 RMW

ORDER DENYING MOTION FOR ORDER

PERMITTING ALTERNATIVE SERVICE OF

PROCESS WITHOUT PREJUDICE

[Re Docket No. 151]

Plaintiffs Mandana D. Farhang and M.A. Mobile move for an order: (1) requiring defendant

Indian Institute of Technology, Kharagpur ("IIT")'s defense counsel to provide copies of the

complaint and other service documents to the unserved defendants; (2) deeming service of all

defendants to have been completed; or (3) authorizing immediate service of unserved defendants by

mail. For the reasons set forth below, the court denies the motion without prejudice.

Case 3:08-cv-02658-WHO Document 182 Filed 07/29/10 Page 1 of 5
United States District Court

For the Northern District of California

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ORDER DENYING MOTION FOR ORDER PERMITTING ALTERNATIVE SERVICE OF PROCESS WITHOUT PREJUDICE—No.

C-08-02658 RMW

CCL 2

I. BACKGROUND

The original complaint in this action was filed on May 27, 2008. On June 2, 2010, the court

issued an order to show cause why the following unserved defendants should not be dismissed for

failure to prosecute: Technology Entrepreneurship and Training Society ("TIETS"), Partha P.

Chakrabarti, Pallab Dasgupta, Rakesh Gupta, Pravanjan Choudhury, Subrat Panda, and Animesh

Naskar (collectively, "Unserved Defendants"). On June 15, 2010, Process Forwarding International

forwarded plaintiffs' request to serve the Unserved Defendants to the Indian Central Authority. In

light of the fact that plaintiffs have now undertaken all steps necessary to accomplish service of

process under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents

("Hague Convention"), the court found that plaintiffs had shown sufficient cause to not have the

Unserved Defendants dismissed at this point but without prejudice to any newly served defendants

bringing a motion to dismiss. 

II. ANALYSIS

Plaintiffs now move for an order either: (1) deeming service of the Unserved Defendants

completed pursuant to Federal Rule of Civil Procedure 4(l)(2)(B), or (2) permitting alternative service

of process under Federal Rule of Civil Procedure 4(f)(3). 

A. Proof of Service Under Rule 4(l)(2)

Rule 4(l)(2) provides that:

[s]ervice not within any judicial district of the United States must be proved as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or 

(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other

evidence satisfying the court that the summons and complaint were delivered to the

addressee.

Fed. R. Civ. P. 4(l)(2). Rule 4(f)(1) addresses service of process through internationally agreed means,

such as those authorized by the Hague Convention. Fed. R. Civ. P. 4(f)(1). Rule 4(f)(2) deals with

service of process where there is no internationally agreed means or an international agreement allows

but does not specify other means for service. Fed. R. Civ. P. 4(f)(2). Rule 4(f)(3) addresses service by

alternative means not prohibited by international agreement pursuant to a court order. Fed. R. Civ. P.

4(f)(3). 

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United States District Court

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 Plaintiffs now seek a court order permitting service by alternative means under Rule 4(f)(3). 

However, no such court order permitting alternative service has issued at this time, and in the

absence of such a court order, plaintiffs could not have served the Unserved Defendants under Rule

4(f)(3). 

ORDER DENYING MOTION FOR ORDER PERMITTING ALTERNATIVE SERVICE OF PROCESS WITHOUT PREJUDICE—No.

C-08-02658 RMW

CCL 3

Plaintiffs have attempted service of the Unserved Defendants by the means authorized by the

Hague Convention. Because service has only been attempted under Rule 4(f)(1),1

 proof of service in

this case is governed by Rule 4(l)(2)(A), not Rule 4(l)(2)(B). See Fed. R. Civ. P. 4(l)(2). The court

therefore denies plaintiffs' motion to deem service completed pursuant to Rule 4(l)(2)(B). Moreover,

under subsection (A), service can only be proved "as provided in the applicable treaty or convention."

Fed. R. Civ. P. 4(l)(2)(A). The Hague Convention provides for proof of service through a certificate

that states that the document has been served, including the method, place, and date of service, and the

person to whom the document was delivered. See Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters, art. 6, Nov. 15, 1965, 20 U.S.T. 361

[hereinafter Hague Convention]. Plaintiffs do not claim to have any such certificate suggesting that the

Unserved Defendants have been successfully served. 

B. Alternative Service of Process Under Rule 4(f)(3)

Plaintiffs seek an order permitting alternative service of the Unserved Defendants, either by mail

or by requiring IIT's defense counsel to provide copies of the complaint and other service documents

to the Unserved Defendants. Rule 4(f)(3) provides that the court may order alternative service "by other

means not prohibited by international agreement." Fed. R. Civ. P. 4(f)(3). The Advisory Committee

Notes suggest that when the Hague Convention is applicable, as in this case, alternate methods of

service should only be permitted under limited circumstances: 

Use of the Convention procedures, when available, is mandatory if documents must be

transmitted abroad to effect service. . . . 

Article 15 does provide that alternate methods may be used if a Central Authority does

not respond within six months. Generally, a Central Authority can be expected to

respond much more quickly than that limit might permit, but there have been occasions

when the signatory state was dilatory or refused to cooperate for substantive reasons.

In such cases, resort may be had to the provision set forth in subdivision (f)(3). . . . 

Paragraph (3) authorizes the court to approve other methods of service not prohibited by

international agreements. The Hague Convention, for example, authorizes special forms

of service in cases of urgency if convention methods will not permit service within the

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ORDER DENYING MOTION FOR ORDER PERMITTING ALTERNATIVE SERVICE OF PROCESS WITHOUT PREJUDICE—No.

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time required by the circumstances. Other circumstances that might justify the use of

additional methods include the failure of the foreign country's Central Authority to effect

service within the six-month period provided by the Convention . . . . In such cases, the

court may direct a special method of service not explicitly authorized by international

agreement if not prohibited by the agreement. 

Fed. R. Civ. P. 4(f) Advisory Committee Notes to 1993 Amendments (emphasis added). Plaintiffs

themselves contend that they were required to wait at least six months for the Indian Central Authority

to act before pursuing a court order permitting alternative service of process. Dkt. No. 151 at 14. 

Plaintiffs appear to believe that the court's July 2, 2010 order finding that plaintiffs had shown

sufficient cause to not have the Unserved Defendants dismissed at that time indicates that Farhang's

March 9, 2009 service attempt had been found to be in compliance with the Hague Convention. To the

contrary, this earlier service attempt failed to comply with the Hague Convention. The court declined

to dismiss the Unserved Defendants because as of June 15, 2010, plaintiffs had undertaken all steps

necessary to accomplish service of process under the Hague Convention. 

Article 3 of the Hague Convention requires service requests to be forwarded by "[t]he authority

or judicial officer competent under the law of the State in which the documents originate." Hague

Convention at art. 3. This language makes clear that the law of the country from which the documents

originate governs who is competent to forward service requests to a Central Authority. See also

Conclusions and Recommendations of the Special Commission on the Practical Operation of the Hague

Apostille, Evidence and Service Conventions, Oct. 28 to Nov. 4, 2003 ¶ 47 ("it is for the law of the

requesting State to determine the competence of the forwarding authorities"). Therefore, any person

who is authorized under United States law to serve process in the United States is also competent to

forward a service request originating in the United States. FRC Int'l, Inc. v. Taifun Feuerloschgeratebau

und Vertriebs GmbH, No. 3:01-CV-7533, 2002 U.S. Dist. LEXIS 17559, at *25 (N.D. Ohio Sept. 4,

2002); Greene v. Le Dorze, No. 3-96-CV-590-R, 1998 U.S. Dist. LEXIS 4093, at *7 (N.D. Tex. Mar.

24, 1998).

 Under United States law, "[a]ny person who is at least 18 years old and not a party may serve

a summons and complaint." Fed. R. Civ. P. 4(c)(2) (emphasis added). Farhang, as a party to this action,

may not serve a defendant herself. Therefore, Farhang is not an authority or judicial officer competent

to forward service requests directly to the Indian Central Authority. Since she personally mailed the

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 Plaintiffs have suggested that the Unserved Defendants know about the case and will be

represented by defendant IIT's counsel. If this is true, it may be that the only consequence of

requiring service pursuant to the Hague Convention will be to delay the case. The Unserved

Defendants might want to consider voluntarily appearing since they could do so without waiving

their right to urge dismissal for failure to diligently prosecute.

ORDER DENYING MOTION FOR ORDER PERMITTING ALTERNATIVE SERVICE OF PROCESS WITHOUT PREJUDICE—No.

C-08-02658 RMW

CCL 5

service documents to the Indian Central Authority on March 9, 2009, this attempt to serve the Unserved

Defendants did not comply with the Hague Convention. 

Six months have not yet passed since June 15, 2010, the date when Farhang had a service request

properly forwarded to the Indian Central Authority. In the absence of extenuating circumstances, the

Central Authority should be provided sufficient time to serve the Unserved Defendants in accordance

with the process set forth in the Hague Convention. The court thus declines to issue an order permitting

alternative service of process at this time. Plaintiffs' motion for an order permitting alternative service

of process is denied without prejudice.2 

III. ORDER

For the foregoing reasons, the court denies plaintiffs' motion without prejudice to re-noticing

if the Unserved Defendants do not voluntarily appear by December 15, 2010.

DATED: 7/29/10

RONALD M. WHYTE

United States District Judge

Case 3:08-cv-02658-WHO Document 182 Filed 07/29/10 Page 5 of 5