United States District Court, D. Nevada
HOFFMAN, JR., UNITED STATES MAGISTRATE JUDGE
before the court is plaintiff Kathryn Mayorga's motion
for alternative service of summons and to enlarge the time
for service (ECF No. 5), filed on February 28, 2019. Also,
before the court is plaintiff's counsel's affidavit
and accompanying exhibits (ECF No. 6), filed on March 1,
case arises from plaintiff's allegations that defendant
sexually assaulted plaintiff. (Compl. (ECF No. 1).) Plaintiff
alleges that following the assault, the parties agreed to
participate in mediation. (Id.) The mediation
resulted in a partial settlement and non-disclosure
agreement. (Id.) Plaintiff further alleges that
because of the trauma resulting from the assault, plaintiff
lacked the capacity to enter into such an agreement.
(Id.) As a result, plaintiff was deprived of
compensatory damages. (Id.) Plaintiff's
complaint includes the following causes of action: battery,
intentional infliction of emotional distress, coercion and
fraud, abuse of a vulnerable person, racketeering and civil
conspiracy, defamation, abuse of process, negligence, and
breach of contract. (Id.) Plaintiff also requests
declaratory relief that the settlement agreement be declared
void and that she be excused from performance. (Id.)
now moves the court to serve defendant through his domestic
counsel, Peter Christiansen. (Mot. for Service (ECF No. 5).)
Plaintiff also moves for service by publication and for
service by mail and email. Lastly, plaintiff moves to extend
the time for service.
MOTION FOR ALTERNATIVE SERVICE
Rules of Civil Procedure Rule 4(f) govern service on an
individual in a foreign country. Rule 4(f) authorizes foreign
service of process on an individual “by any agreed upon
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). Service on applicable
defendants must conform to the requirements of the Hague
Convention on the Service Abroad of Judicial and
Extrajudicial Documents (the “Convention”), to
the extent that it applies. See Volkswagenwerk
Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699-706
(1988) (indicating that compliance is mandatory to all cases
to which the Hague Service Convention applies); see also
service Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.
2004). The Convention applies when one seeks to
“transmit a judicial . . . document for service abroad
. . . .” See Hague Convention, art. 1, 20
U.S.T. at 362. Article 2 of the Convention states that
signatories are to designate a Central Authority to handle
requests for service from other contracting states. See
Id. art. 2. Both the United States and Italy are
signatories to the Convention; and thus, the Convention is
applicable here. Hague Convention, 20 U.S.T. 361 (1965).
reviewed the motion and counsel's affidavit, the court
finds that alternative service is premature. Plaintiff's
counsel states in her affidavit that plaintiff hired a
process server to personally serve defendant pursuant to the
Convention. (ECF No. 6.) The affidavit details the process
servers failed attempts to serve defendant due to an
inability to identify defendant's Italian address. Only
recently, on December 28, 2018, did plaintiff initiate
service through Italy's Central Authority as required by
the Convention. Counsel does not dispute that the Hague
Convention is applicable to this case, as she cites to the
Convention throughout her motion and affidavit. As such,
plaintiff must first comply with Italy's Central
Authority for process of service. Therefore, the motion for
alternative service is denied without prejudice.
MOTION TO EXTEND
4(m) of the Federal Rule of Civil Procedure provides the time
for service on domestic defendants:
If a defendant is not served within 90 days after the
complaint is filed, the court - on motion or on its own after
notice to the plaintiff - must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). The court “must extend time for
service upon a showing of good cause.” Crowley v.
Bannister, 734 F.3d 967, 976 (citing Lemoge v.
United States, 587 F.3d 1188, 1198 (9th Cir. 2009).
Absent a showing of good cause, the court may exercise its
discretion to extend service upon a showing of excusable
neglect or dismiss the complaint. See Id. The court
has “broad discretion to extend time for service under
Rule 4(m).” Efaw v. Williams, 473 F.3d 1038,
1041 (9th Cir. 2007).
the time limit for service under Rule 4(m) “does not
apply to service in a foreign country under Rule 4(f).”
Id.; see also Lucas v. Natoli, 936 F.2d
432, 432-33 (9th Cir. 1991). As discussed in the section
above, Rule 4(f) delineates the procedural requirements of
service of process of an individual in a foreign country.
See Fed. R. Civ. P. 4(f). However, Rule 4(f) does
not contain an express time limit for service. See
reviewed plaintiffs motion, the court finds that plaintiff
has demonstrated good cause for an extension to serve
defendant. In her declaration, plaintiffs counsel states that
she initiated service of process through Italy's Central
Authority and that service may take up to 180 to 360 days.