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Newmont USA Ltd. v. Imatech Systems Cyprus Pty Ltd.

United States District Court, D. Nevada

July 17, 2019

NEWMONT USA LIMITED, a Delaware Corporation, Plaintiff,
v.
IMATECH SYSTEMS CYPRUS PTY LTD dba ARMORPIPETM TECHNOLOGIES, a foreign Corporation; INTERNATIONAL MATERIALS & TECHNOLOGY PTY LIMITED dba IMATECH, a foreign Corporation; and DOES 1 to 10, inclusive, Defendants.

          ORDER GRANTING NEWMONT'S UNOPPOSED MOTION FOR ALTERNATIVE SERVICE

         Plaintiff, Newmont USA Limited (“Newmont”) filed a Motion for Alternative Service (ECF No. 21) upon Defendants Imatech Systems Cyprus Party Limited dba Armorpipe Technologies (“Imatech Cyprus”) and International Materials & Technology dba Imatech (“IM&T, ” collectively “Imatech”) pursuant to Federal Rule of Civil Procedure 4(f)(3). At the request of this Court, it also filed a supplement to that motion. ECF No. 26. No. opposition has been filed to the Motion. The Court conducted a hearing on the motion on July 17, 2019.[1]

         As set forth in the forgoing order, Newmont's Motion as to Imatech Cyprus pursuant to Federal Rule of Civil Procedure 4(f)(3) is hereby GRANTED.

         Newmont's Motion as to alternative service on IM&T pursuant to Federal Rule of Civil Procedure 4(f)(3) is hereby DENIED AS MOOT. Since Newmont filed the instant motion, the Court was notified by the Australian Central Authority that service on IM&T was effectuated on March 15, 2019

         I. BACKGROUND

         Newmont filed the instant action on December 4, 2018 against Defendants for claims sounding in negligence, strict products liability, breach of express and implied warranty, and negligent misrepresentation. ECF No. 1. The summons was issued on December 6, 2018. ECF No. 2. Newmont named as defendants Imatech Systems Cyprus Party Limited dba Armorpip Technologies (“Imatech Cyprus”) and International Materials & Technology dba Imatech (“IM&T, ” collectively “Imatech”). The parties were listed on the Imatech website as being located in Cyprus and Australia, respectively.

         On January 11, 2019, pursuant to the Hauge Service Convention, Newmont filed a motion for issuance of letters rogatory to Cyprus and Australia, which the Court granted on January 14, 2019. ECF Nos. 7, 8. On February 26, 2019, the Court granted Newmont's ex parte motion for an extension to effectuate service until July 2, 2019. ECF No. 11.

         Newmont counsel avers that IM&T has communicated regularly with Newmont's counsel including approximately sixteen emails and ten telephone calls. IM&T filed a motion to dismiss for lack of personal jurisdiction on April 5, 2019 (ECF No. 13) and consented twice to stipulations to extend Newmont's time to oppose such motion. ECF Nos.16, 20. IM&T's Motion to Dismiss includes a declaration from Warwick John Rule the “sole director and secretary” of IM&T. ECF No. 13, Exhibit A. Warwick John Rule is also listed as the director of Imatech Cyprus.

         Newmont has contacted the Cypriot authorities on multiple occasions and remitted the requested fee for effectuating service, but to date, neither Newmont nor the Court have received notification that service has been completed upon Imatech Cyprus. Cyprus is a signatory of the Hague Convention and has not objected to Article 10 of the Hague Convention, including that article's provisions about transmitting judicial documents by postal service. See CCH, Cyprus - Central Authority & practical information, https://www.hcch.net/en/states/authorities/details3/?aid=50, (last visited June 22, 2019) (website maintained by the Hague Conference on Private International Law states that Cyprus has “[no] opposition” to Article 10.).

         On June 6, 2019 via telephonic conference, Newmont's counsel requested IM&T's counsel waive the service requirement as to both IM&T and Imatech Cyprus. However, IM&T's counsel stated that did not have the authority to waive such service. Newmont filed this Motion on June 19, 2019 requesting the Court authorize alternative service of Imatech Cyprus and IM&T via email to IM&T's counsel James Whitmire. ECF No. 21. Newmont filed a supplement to the motion on June 25, 2019. ECF No. 26. No. opposition has been filed.

         Service was effectuated on IM&T in Australia on March 15, 2019. Newmont and this Court received notification of such service on July 3, 2019. ECF No. 28.

         II. DISCUSSION

         A. Service on a Foreign Corporation or Association Under Rule 4

         Rule 4 of the Federal Rules of Civil Procedure governs service of process in civil suits. Fed.R.Civ.P. 4(h)(2) provides that, “[u]nless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation ... must be served ... at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).” Fed.R.Civ.P. 4(f), which applies to foreign corporations, provides that service may be completed on a foreign corporation using any of the following methods:

(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 ...

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