Service Of Process On Evasive Defendants

On September 15, 2018, the U.S. District Court for the Southern District of Florida granted an order authorizing service of process by electronic mail in a trademark infringement case where the plaintiff was unable to make personal service due to evasive conduct by the Defendants, according to SGR partner Bruce McDonald, representing the plaintiff. See Transamerica Corp. v. TransAmerica Multiservices Inc. et al., No. 1:18-cv-22483 (S.D.Fla.). While the federal courts have granted motions for "substituted service" in cases of fictitious and anonymous websites registered to individuals and entities ostensibly located overseas, this was the first known federal court decision authorizing electronic service on a resident of the forum state based on evidence that the individual was evading service.

Florida Federal Court Grants Order for

Alternate Service of Process on Evasive Defendants

Trademark owners are familiar with the challenges of serving process on fictitious and anonymous operators of websites engaged in the offer and sale of goods and services. The availability of "substituted service of process" by electronic mail in cases of foreign fictitious and anonymous website operators in trademark infringement cases has been authorized by U.S. courts under Rule 4(f)(3) of the Federal Rules of Civil Procedure.2 But Fed. R. Civ. P. 4(f)(3) is only available in the case of individuals located in a foreign country, so what about trademark scofflaws located in the United States who are evading service of process?

In Transamerica v. TransAmerica Multiservices, the district court granted a trademark infringement plaintiff's motion for substituted service on the grounds that:

(1) the defendants concealed their whereabouts by registering fictitious addresses with the Florida Secretary of State where they could be located or served;

(2) the individual defendant was not located at his last known address and was evading service of process;

(3) the plaintiff complied with state statutory requirements for substituted service on the defendants by certified mail and delivery to the Florida Secretary of State;

(4) the plaintiff was unable to effect personal service on either the corporate or the individual defendant despite diligent efforts;

(5) the defendants had a record of responding to email communications directed to their email address;

(6) the defendants were on actual notice of the proceeding by reason of the plaintiff's communications to their email address;

(7) the defendants were in actual receipt of the Complaint by reason of delivery to their email address; and

(8) on that basis, electronic service was reasonably calculated to provide actual notice of filings and correspondence in this case

Standard of Review

Different standards govern service of process on individuals and corporate entities, and there are different standards for defendants located in the United States and those abroad.

Individual Defendant

Rule 4(e) of the Federal Rules of Civil Procedure governs the methods by which service of process may be effected on an individual. Rule 4(e) provides:

(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e) (emphasis added). Because the individual Defendant had concealed his whereabouts and was evading service of process, the plaintiff argued, he could not be served by the methods provided in Fed. R. Civ. P. 4(e)(2), so the question was whether Plaintiff had followed state law for serving a summons on her as provided in Fed. R. Civ. P. 4(e)(1).

Corporate Defendant Rule 4(h)(1) of the Federal Rules of Civil procedure governs the methods by which service of process may be effected on a limited liability company:

(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant[.]

Fed. R. Civ. P. 4(h)(1) (emphasis added). Because it registered false and fictitious addresses with the Florida Secretary of State, Plaintiff argued, the corporate defendant could not be served by the method provided in Fed. R. Civ. P. 4(e)(1), so the question was whether Plaintiff had followed state law for serving a summons as provided in Fed. R. Civ. P. 4(h)(1)(B).

The provisions of Florida law applicable to...