United States District Court, S.D. Florida
SUCESORES DE DONE CARLOS NUNEZ Y DONA PURA GALVES, INC., d/b/a/ BANCO NUNEZ, Plaintiff,
SOCIÉTÉ GÉNÉRALE, S.A., d/b/a SG AMERICAS, INC., et al., Defendants.
P. GAYLES UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court on Plaintiff's
Motion for Approval of a Plan for Alternative Service of
Process [ECF No. 18]. The Court has reviewed the Motion and
the record and is otherwise fully advised. As set forth
below, the Motion is denied without prejudice.
brings this action against Defendants Société
Générale, S.A., d/b/a SG Americas, Inc.
(“SG”), The Bank of Nova Scotia, d/b/a Scotia
Holdings (US) Inc., a/k/a The Bank of Nova Scotia, Miami
Agency (“Scotibank”), The National Bank of
Canada, d/b/a National Bank of Canada Financial Group, Inc.
(“NatBC”), and Banco Bilbao Vizcaya Argentaria,
S.A., d/b/a BBVA, USA (“BBVA”) alleging
violations of Title III of the Helms-Burton
Plaintiff seeks to serve Scotibank and NatBC, each Canadian
companies, as well as BBVA, a Spanish company, by serving
their wholly-owned United States subsidiaries. Because Canada
and Spain are signatories to The Hague Convention on Service
Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters (the “Hague Convention”),
service on Scotibank, NatBC, and BBVA can be accomplished via
Canada and Spain's Central Authorities for service.
However, Plaintiff seeks an order authorizing alternative
service on their subsidiaries arguing that service via the
Hague Convention will unduly delay the speedy determination
of the case.
to Federal Rule of Civil Procedure 4, service on a
corporation outside of the United States may be made by (1)
any internationally agreed means of service reasonably
calculated to give notice, such as the Hague Convention; (2)
if there is no internationally agreed means, or if the
international agreement allows but does not specify other
means, by a method prescribed by the foreign country's
law for service, or as the foreign authority directs in
response to letter rogatory or letter of request; or (3) by
other means not prohibited by international agreement as
ordered by the Court. Fed.R.Civ.P. 4(f)(1); 4(h)(2).
“Where, as here, there are multiple independent bases
for international service under Fed.R.Civ.P. 4, the Court may
use its discretion to decide the proper basis for the chosen
method of international service.” Ghostbed, Inc. v.
Casper Sleep, Inc., 315 F.R.D. 689, 691 (S.D. Fla.
2016). And while “compliance with the Convention is
mandatory in all cases to which it applies, ”
Volkswagen-werk Aktiengesellschaft v. Schlunk, 486
U.S. 694, 705 (1988), the Court is permitted to order
alternate means of service as long as the signatory nation
has not expressly objected to those means. Codigo Music,
LLC v. Televisa S.A., No. 15-CIV-21737, 2017 WL 4346968,
at *5 (S.D. Fla. Sep. 29, 2017). In addition, the Hague
Convention only applies when “transmittal abroad . . .
is required as a necessary part of service.”
Volkswagenwerk Aktiengesellschaft, 486 U.S. at 707.
It has “no further implications . . . [w]here service
on a domestic agent is valid and complete under both state
law and the Due Process Clause.” Id.
Plaintiff seeks to serve Scotibank, NatBC, and BBVA through
their subsidiaries located in the United States. In some
circumstances, a foreign corporation may be served in the
United States through its wholly-owned United States-based
subsidiary. See Wood Mountain Fish, LLC v. Mowi ASA,
No. 19-22128, 2019 WL 3036536, at *1 (S.D. Fla. July 11,
2019). However, service must still comport with Florida law
and the Due Process Clause. See Codigo, 2017 WL
4346968, at *8 (denying request to serve foreign corporation
through its United States' subsidiary where plaintiffs
“failed to demonstrate that service on [subsidiary]
com-port[ed] with Florida law . . .”); Fendi Adele,
S.R.L. v. 1N1Qualitybag.com, No. 16-cv-60113, 2016 WL
8710784, at *1 (S.D. Fla. Mar. 29, 2016) (holding that
alternate methods of service of process must “comport
with general due process requirements.”).
to Florida Statutes §§ 48.181(3) and 48.181(1),
“if a nonresident defendant does business in the forum
through ‘brokers, jobbers, wholesalers, or
distributors,' then service through such an entity is
proper as service on an agent of process.” Vega
Glen v. Club Medi-terranee S.A., 359 F.Supp.2d 1352,
1355 (11th Cir. 2005) (quoting McClenon v. Nissan Motor
Corp., 726 F.Supp. 822, 826 (N.D. Fla. 1989)). However,
the mere existence of a parent/subsidiary
relationship-without more-does not support substituted
service under Florida law. Id. at 1357. Rather, to
justify service on a defendant via its subsidiary, a
plaintiff must show “that the parent corporation
exercised such a degree of control over its subsidiary that
the activities of the subsidiary were in fact the activities
of the parent within the state . . . .” Id.
(quoting McClenon, 726 F.Supp. at 826). Plaintiff
fails to make such a showing.
from noting that Scotibank, NatBC, and BBVA's
subsidiaries in the United States are “wholly-owned,
” Plaintiff fails to provide any evidence that the
Defendants exercised any degree of control over their
subsidiaries such that substitute service is proper. See
Codigo, 2017 WL 4346968, at * 8 (“[I]n determining
whether service of process may be made on a foreign
corporation through application of agency theory to a
domestic company or agent, the focus is the degree of control
that foreign corporation exercises over the other
entity.”) (citing Lamb v. Volkswagen
Aktiengesellschaft, 104 F.R.D. 95, 98-99 (S.D. Fla.
1985)). Without additional information to support authorizing
service on the subsidiaries, the Motion must be denied
without prejudice, and Plaintiff must serve Scotibank, NatBC,
and BBVA via the Hague Convention or through an approved
on the foregoing, it is
AND ADJUDGED that Plaintiff s Motion for Approval of
a Plan for Alternative Service of Process [ECF No. 18] is
denied without prejudice.