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Calista Enters. Ltd. v. Tenza Trading Ltd.

United States District Court, D. Oregon

August 26, 2014

CALISTA ENTERPRISES LTD., a Republic of Seychelles Company, Plaintiff,
v.
TENZA TRADING LTD., a Cyprus Company, Defendant and Counterclaim-Plaintiff,
v.
ALEXANDER ZHUKOV, a citizen of the Czech Republic, Counterclaim-Defendant

For Calista Enterprises Ltd., Plaintiff: Valentin David Gurvits, Matthew Shayefar, BOSTON LAW GROUP, PC, Newton Centre, MA; Sean Ploen, PLOEN LAW FIRM, PC, Minneapolis, MN; Evan Fray-Witzer, CIAMPA FRAY-WITZER, LLP, Boston, MA; Thomas Freedman Jr., PEARL LAW LLC, Portland, OR.

For Alexander Zhukov (limited appearance), Counterclaim-Defendant: Valentin David Gurvits and Matthew Shayefar, BOSTON LAW GROUP, PC, Newton Centre, MA; Sean Ploen, PLOEN LAW FIRM, PC, Minneapolis, MN; Evan Fray-Witzer, CIAMPA FRAY-WITZER, LLP, Boston, MA; Thomas Freedman Jr., PEARL LAW LLC, Portland, OR.

For Tenza Trading Ltd., Defendant: Paul N. Tauger, Anna M. Vradenburgh, THE ECLIPSE GROUP LLP, Irvine, CA; Devon Zastrow Newman, Alexandra J. Bodnar, SCHWABE, WILLIAMSON & WYATT, P.C., Portland, OR.

Page 1372

OPINION AND ORDER

Michael H. Simon, United States District Judge.

Defendant and Counterclaim-Plaintiff Tenza Trading Ltd. (" Tenza" ) moves for alternative service on Counterclaim-Defendant Alexander Zhukov (" Mr. Zhukov" ) pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure. (ECF 148.) Tenza requests an order permitting it to effect service of process on Mr. Zhukov through one or more of the following alternative means: (1) by email to webmaster@AlexZ-Traffic.com; (2) by service on the attorneys who entered a limited appearance

Page 1373

for Mr. Zhukov to challenge the motion for default, namely Valentin Gurvitz, Thomas Freedman, Evan Fray-Witzer, Matthew Shayefar, and Sean Ploen; or (3) by mail both to Mr. Zhukov's Russian address and his Czech Republic address. Mr. Zhukov, making a limited special appearance, objects to Tenza's proposed alternative service. For the reasons stated below, the Court GRANTS in part Tenza's motion.

BACKGROUND

Plaintiff Calista Enterprises Ltd. (" Calista" ) filed this action on June 21, 2013. On August 21, 2013, Tenza filed its Answer and Counterclaims. On March 14, 2014, Tenza filed a motion for leave to amend its counterclaims to add Mr. Zhukov as a counterclaim-defendant and alleged real party in interest to this matter. The basis of Tenza's motion was its assertion that Mr. Zhukov is the alter ego of Calista, which Tenza contends it determined during the course of discovery in January and February of 2014. In particular, Tenza relied on the deposition testimony of Mr. Zhukov taken as Calista's designated representativee pursuant to Fed.R.Civ.P. 30(b)(6). The deposition of Mr. Zhukov was conducted in the Czech Republic. On April 23, 2014, the Court granted Tenza's motion to file its Answer and First Amended Counterclaims. On June 9, 2014, after adding Mr. Zhukov as a counterclaim-defendant, Tenza filed a motion for default judgment against him. Mr. Zhukov made a limited special appearance for the purpose of responding to that motion. On July 23, 2014, the Court denied without prejudice Tenza's motion for entry of default judgment against Mr. Zhukov.

Tenza made one attempt at service of process on Mr. Zhukov. During an expert deposition in this case " [s]ome months ago," counsel for Tenza asked counsel for Calista if Mr. Zhukov authorized counsel for Calista to accept service of process on behalf of Mr. Zhukov. Counsel for Calista stated that they would need to check with Mr. Zhukov. Having not received a response, counsel for Tenza sent a follow-up email to counsel for Calista on July 31, 2014. Counsel for Calista responded: " [A]fter speaking with Mr. Zhukov, I had told you that we had not been authorized to accept service on his behalf. I am told that this remains the case as of today."

STANDARDS

Service of process is a " formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action." Volkswagenwerk Aktiengesellschaft v. Schlunk 486 U.S. 694, 700, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988) (citations omitted). Service of process requirements are generally a prerequisite to a court's jurisdiction over an adverse party. See Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (" A federal court does not have jurisdiction over a defendant unless the defendant has been served properly . . . ." ).

In the federal courts, sufficiency of service of process is governed by Rule 4 of the Federal Rules of Civil Procedure. Id. Rule 4(f) governs service on an individual in a foreign country. See Fed.R.Civ.P. 4(f). Rule 4(f) provides that an individual " may be served at a place not within any judicial district of the United States" through any of three separate 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 ...

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