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Smith v. Wolf Performance Ammunition

United States District Court, District of Nevada

January 23, 2015

ANDREW SMITH, Plaintiffs,
v.
WOLF PERFORMANCE AMMUNITION, , Defendants.

ORDER (DOCKET NO. 57)

NANCY J. KOPPE United States Magistrate Judge

Pending before the Court is Third-Party Plaintiff Sporting Supplies International’s (SSI) motion for substitute service on Third-Party Defendant Tula Cartridge Works. Docket No. 57. The Court has reviewed SSI’s motion, Defendant Tulammo, USA, Inc.’s opposition, and SSI’s reply. Docket Nos. 57, 58, 59. The Court finds that this motion is properly resolved without oral argument. See Local Rule 78-2.

I. BACKGROUND

This matter arises out of an incident that allegedly occurred on April 7, 2012. Docket No. 1-2, at 7. Plaintiff alleges that he was injured when the firearm and ammunition he was using exploded in his face. Id. On October 29, 2013, Plaintiff filed the instant action in the District Court for Clark County, Nevada. Id., at 11. Thereafter, SSI removed the case to this Court on December 5, 2013. Docket No. 1. SSI filed its Answer to Plaintiff’s Complaint on December 11, 2013. Docket No. 7.

On August 8, 2014, the Court granted SSI’s motion for leave to file a Third-Party Complaint against Tula Cartridge Works and Tulammo USA, Inc. (Tulammo). Docket No. 35. SSI claims that Tula Cartridge Works and Tulammo may be liable to it for contribution and indemnification. The Third-Party Complaint was filed on August 12, 2014. Docket No. 36. On September 2, 2014, the Clerk of the Court issued the summonses for the Third-Party Complaint. Docket No. 42.

On December 2, 2014, SSI filed the pending motion for substitute service of the Third-Party Complaint upon Tula Cartridge Works, a Russian company that has its principal place of business in Tula, Russia. Docket No. 57, at 3. SSI represents that traditional methods of foreign service are impossible in this case because, since 2003, the Russian Federation has unilaterally suspended all judicial cooperation with the United States in civil and commercial matters. Id., at 4 (citing Nuance Commc’ns, Inc. v. Abbyy Software House, 626 F.3d 1222, 1239 (Fed. Cir. 2010)). Thus, SSI seeks leave to serve the Third-Party Complaint, translated into Russian, and summons on Tula Cartridge Works by: (1) international express mail to Tula Cartridge Works in Russia; (2) electronic mail using the e-mail addresses listed on Tula Cartridge Works’ website; and (3) serving counsel of record for Third-Party Defendant Tulammo, as “the domestic U.S. affiliate/agent of Tula Cartridge Works.” Id., at 2.

On December 19, 2014, Tulammo filed an opposition to SSI’s motion for substitute service. Docket No. 58. First, Tulammo argues that SSI failed to demonstrate that traditional methods of service would be impossible. Id., at 5. Second, Tulammo argues that service upon it would be improper because “Tulammo is categorically not . . . the exclusive distributor of small arms ammunition manufactured by [Tula Cartridge Works]” and no shareholders of Tula Cartridge Works own shares of Tulammo Id., at 5.

In reply, SSI contends that the option of non-traditional methods of service does not depend on whether traditional methods are also available. Docket No. 59, at 3. SSI also argues that the actual corporate relationship between Tula Cartridge Works and Tulammo is immaterial because Tulammo admits to “an on-going business relationship” with Tula Cartridge Works. Id., at 6.

II. SUBSTITUTE SERVICE

Rule 4(f)[1] governs how to effect service upon an individual in a foreign country. Rule 4(f) provides:

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 at a place not within any judicial district of the United States:
(1) 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;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is ...

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