UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KEVIN CHAMBERLAIN, an individual

NED NEWCOMER, an individual, and

JERALD ADLER, an individual, on their

own behalf and on behalf of all others

similarly situated,

Plaintiff,

v. Case No.: 4:10-CV-00477-SPM-WCS

INTEGRACLICK, INC., a Delaware

corporation, d/b/a Clickbooth, JUST 

THINK MEDIA, a Canadian Company,

d/b/a FAREND SERVICES LIMITED,

Defendant. 

______________________________/

ORDER DENYING DEFENDANT’S MOTION TO QUASH SERVICE OF PROCESS

THIS CAUSE comes before the Court on Defendant’s motion to quash service of process

and dismiss the complaint. Doc. 5. Defendant accompanied its motion with a memorandum of

supporting law, Doc. 5; an affidavit from Michael Stefaniuk, Vice President of Engineering for

1021018 Alberta Ltd., Doc. 6; and a copy of the Clickbooth.com Advertisers Terms and

Conditions contract, Doc. 6, Ex. A. Plaintiffs filed a response in opposition to Defendant’s

motion, Doc. 22, which included the following attachments: (1) Declaration of Benjamin H.

Richman, attorney for Plaintiffs, Doc. 22, Ex. A; (2) Service papers under The Hague

Convention, Doc. 22, Ex. A-1; (3) Affidavit of service, Doc. 22, Ex. A-2; (4) Notice of

appearance by J. Martin Hayes, Doc. 22, Ex. A-3; (5) Notice of deposition, Doc. 22, Ex. A-4; and

(6) Letter from Karl S. Kronenberg dated December 8, 2010, Doc. 22, Ex. A-5. For the reasons

stated below, Defendant’s motion will be DENIED. 
Background

Plaintiffs Kevin Chamberlain, Ned Newcomer, and Jerald Adler, as individuals and on

behalf of others similarly situated [hereinafter “Plaintiffs”], brought the instant action against

Clickbooth and Just Think Media in the Circuit Court of the State of Florida in and for the

Second Judicial Circuit of Leon County, Florida on December 1, 2009. Just Think Media, a

foreign corporation established and doing business in the province of Alberta, Canada, removed

Plaintiffs’ state court case to this Court pursuant to 28 U.S.C. §§ 1332(d)(2) and 1441. 

Plaintiffs brought suit against Just Think Media and Clickbooth alleging that defendants

engaged in fraudulent trade practices, deceptive online advertising, and deceptive billing relating

to the sale of work-at-home products. Plaintiffs allege that, with the help of Clickbooth and a

carefully devised scheme, Just Think Media collects Plaintiffs’ credit card information and

charges and collects excessive monthly fees from its consumers. Doc. 22, p. 2.

In its motion, Just Think Media petitions the Court to dismiss Plaintiffs’ action for failure

to effect proper service of process. Just Think Media bases its motion upon two grounds: (1)

Plaintiffs did not comply with the Hague Convention on Service Abroad and (2) Plaintiffs failed

to properly serve Defendant through an appropriate agent. 

Plaintiffs argue that they have exhausted every available measure to properly serve Just

Think Media and that Just Think Media has engaged in evasive practices resulting in a waste of

judicial resources. In support of its argument, Plaintiffs point the Court to the exhibits attached

to its response to the motion to quash. 

On May 2, 2010, Plaintiffs issued a request for service to Just Think Media in compliance

with the Hague Convention on Service Abroad. Doc. 22, Ex. A-1. Plaintiffs engaged the service

of a process server and, on July 6, 2010, Plaintiffs attempted to serve Just Think Media in
Edmonton, Alberta; Just Think Media, however, refused to accept service. Id. On September 29,

2010, attorney J. Martin Hayes of Ackerman Senterfitt, filed a notice of appearance with the

Circuit Court of the Second Judicial Circuit in and for Leon County, Florida as counsel on behalf

of both defendants, Clickbooth and Just Think Media. Id., Ex. A-3. Subsequent to the

representation that attorney Hayes was counsel for both Just Think Media and Clickbooth,

Plaintiffs engaged the assistance of another process server and served a copy of the summons and

the complaint on Lisa Malwitz, receptionist for Akerman Senterfitt, on October 11, 2010. Id.,

Ex. A-2. Shortly thereafter, on October 28, 2011, Just Think Media removed the case to this

Court and included a copy of the summons and the complaint with the notice. See Doc. 1. On

November 3, 2010, Just Think Media filed the instant motion to quash service of process. 

Counsel for Plaintiffs, Benjamin H. Richman, called Karl S. Kronenberger, counsel for Just

Think Media, informed him of the repeated attempts to serve the company, and requested that

Kronenberger accept service to put the issue to rest. Doc. 22, Ex. A, ¶ 5-6. Kronenberger

refused to accept service. Plaintiffs claim that Just Think Media’s non-compliance thus far has

been evasive and requests the Court to order Just Think Media to accept service. 

Standard

Rule 12 (b)(5) allows a defendant to move for dismissal on the grounds of insufficient

service of process. FED R. CIV. P. 12(b)(5). Once the sufficiency of service is brought into

question, the plaintiff has the burden of proving proper service of process. Banco Latino,

S.A.C.A. v. Gomez Lopez, 53 F. Supp. 2d 1273, 1277 (S.D. Fla. 1999). If the plaintiff can

establish that service was proper, the burden shifts to the defendant to “bring strong and

convincing evidence of insufficient process.” Hollander v. Wolf, No. 09-80587-CIV, 2009 WL

3336012, at *3 (S.D. Fla. 2009); see O’Brien v. R.J. O’Brien Associates, Inc., 998 F.2d 1394,
1398 (7th Cir. 1993). “The Court may look to affidavits, depositions, and oral testimony to

resolve disputed questions of fact.” Hollander, 2009 WL 3336012, at *3 (citations omitted). 

There are two ways in which a foreign corporation may be served that are applicable to

the instant case: (1) extra-territorial service in compliance with international agreements and (2)

service within the United States made upon an agent of the foreign corporation or in compliance

with state law governing service upon a foreign corporation 

Service Pursuant to the Hague Convention

A foreign corporation is subject to service outside of the United States by “any

internationally agreed means of service that is reasonably calculated to give notice, such as those

authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial

Documents.” FED. R. CIV. P. 4(f)(1); see also FED. R. CIV. P. 4(h)(2). The Hague Convention’s

provisions authorize service on a defendant in a foreign jurisdiction by providing a set of

guidelines that contracting states must follow. See Hague Convention on Service Abroad of

Judicial and Extrajudicial Documents, Nov. 15, 1965, 20 U.S.T. 361 [hereinafter Hague

Convention on Service Abroad]. The main purpose of the Hague Convention on Service Abroad

is “to provide a simpler way to serve process abroad, to assure that defendants sued in foreign

jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service

abroad.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 286 U.S. 694, 698 (1988). By

agreeing to be parties to the Convention, contracting states must work together to effectuate the

goals embodied therein by following the procedures for service set out in the Convention. 

The first step that each state must take in compliance with the Convention, pursuant to

Article 2, is to designate a central authority to receive requests for service of documents from

other countries that are parties to the convention. Hague Convention on Service Abroad. Then,
the central authority must serve the documents by a method prescribed by internal law or by a

particular method requested by the applicant so long as it is compatible with the law of the

receiving state. Id. at art. 5. Furthermore, the central authority must then complete a certificate

of service which states that the document has been served; if it has not been served, the

certificate must state the reasons which have prevented service. Id. at art. 6.

In the instant case, Plaintiffs have demonstrated an attempt to comply with the Hague

Convention’s service requirements, and their attempt was thwarted when Defendant would not

accept service. See Doc. 22, Ex. A-1. Plaintiffs contacted the designated Canadian Central

Authority on May 2, 2010 to request service of the summons and the complaint on Defendant in

Canada. Id. The Canadian Central Authority verified the request and attempted to serve

Defendant on July 6, 2010 in accordance with the provisions of Article 5 sub-paragraph (a) of the

Convention; however, Defendant refused to accept service from the process server. Id. As

Plaintiffs point out, Defendant should not be permitted to “demand that Plaintiffs serve process

under the Hague Convention, refuse to accept service when they do, and then cry foul.” Doc. 22,

p. 7. While the Hague Convention stands as a method to effect service between foreign states, its

main purpose is to act as a safeguard for extra-territorial defendants by requiring that defendants

be provided adequate notice of their need to defend in foreign courts. Where it is evident that the

Plaintiffs have tried to comply with the Hague Convention on Service Abroad and that Defendant

has notice of suit and is taking active steps to evade service in hopes of making it more difficult

for Plaintiffs to effectively serve them, the underlying purpose of the Hague Convention’s service

procedures are frustrated. 
Service Upon an Agent

Federal Rule of Civil Procedure 4(h) provides two ways in which a foreign corporation is

subject to service in a judicial district of the United States. First, service may be effected by

following the state law regarding service of a foreign corporation in the jurisdiction where the

district court is located or where service has been made, FED. R. CIV. P. 4(e)(1), (h)(1)(A). In the

instant case, Plaintiffs are attempting to effect service on Defendant pursuant to section 48.081(2)

of the Florida Statutes. According to section 48.081(2), a plaintiff may effect service on a

foreign corporation by serving “any agent transacting business for [the foreign corporation] in

this state.” The second way in which a foreign corporation is subject to service in a judicial

district of the United States is by delivering a copy of the summons and the complaint to an

officer or agent of the corporation, see FED. R. CIV. P. 4(h)(1)(B). 

 To determine whether Plaintiffs have properly served Defendant under Rule 4(h) in

either of the two manners outlined above, it is necessary for this Court to determine first whether

Clickbooth or, alternatively, Akerman Senterfitt was an agent of Just Think Media. To establish

an agency relationship under Florida law, the plaintiff must establish “(1) acknowledgment by

the principal that the agent will act for it, (2) the agent’s acceptance of the undertaking, and (3)

control by the principal over the actions of the agent.” Gregory v. EBF & Assoc., L.P., 595 F.

Supp. 2d 1334, 1340 (S.D. Fla. 2009); State v. Am. Tobacco Co., 707 So. 2d 851, 854 (Fla. 4th

DCA 1998). The most important element in the agency test is the amount of control that the

foreign corporation has over the purported agent. See State v. Am. Tobacco Co., 707 So.2d at

854-855. “Only where there is a showing by plaintiff that the parent corporation exercised such a

degree of control over its subsidiary that the activities of the subsidiary were in fact the activities
of the parent within the state is substituted service of process permitted.” Volkswagenwerk

Atkiengelselischaft v. McCurdy, 340 So.2d 544, 546 (Fla. 1st DCA 1976). 

In the instant case, Plaintiffs attempted to serve Defendant by delivering a copy of the

summons and the complaint to the secretary at Ackerman Senterfitt, the law firm representing codefendant Clickbooth. It is evident that, by delivering the paperwork to Ackerman Senterfitt,

Plaintiffs attempted to serve Defendant through its agent in Florida. This Court does not agree

with Plaintiffs that Clickbooth was an agent of Defendant because it is not evident that the level

of control that Defendant had over Clickbooth was sufficient to give rise to an agency

relationship. Despite the fact that Clickbooth may not satisfy the necessary elements to be

Defendant’s agent, Plaintiffs attempt to serve Defendant by delivering a copy of the summons

and the complaint at Ackerman Senterfitt was still sufficient to serve Defendant. As is evident

from the notice of appearance that is attached to Plaintiffs’ response, Doc. 22, Ex. A-3, an

attorney at Ackerman Senterfitt, J. Martin Hayes, represented to the Circuit Court in Leon

County, Florida that he was counsel for Defendant. See Doc. 22, Ex. A. It is well settled that,

“[g]enerally, an attorney serves as agent for his client; the attorney’s acts are the acts of the

principal, the client.” Andrew H. Boros, P.A., v. Arnold P. Carter, M.D., P.A., 537 So.2d 1134,

1135 (3d DCA 1989)(citations omitted). Therefore, Plaintiffs were justified in their belief that

service upon Defendant through serving a party that held itself out to be an agent of Defendant to

the Circuit Court in Levy County was well-founded. 

This Court finds that delivering a copy of the summons and the complaint to Ackerman

Senterfitt, coupled with the attempted direct service of Defendant in compliance with the Hague

Convention, is sufficient to withstand Defendant’s motion to quash service of process. 

Defendant does not set forth a strong enough counter-argument to establish that Plaintiffs service
was insufficient. Where it is evident that Plaintiffs have tried to comply with every available

means to provide Defendant with notice, that Defendant does have actual notice of suit, and that

Defendant has been evading service, it seems futile to require Plaintiffs to expend countless

additional resources in order to effect service upon Defendants.

 Accordingly, it is 

ORDERED and ADJUDGED that Defendant’s motion to quash service of process is

DENIED. 

DONE and ORDERED this fifteenth day of April, 2011.

s/ Stephan P. Mickle 

Stephan P. Mickle

Chief United States District Judge