RULING ON PLAINTIFF'S MOTION FOR ALTERNATE SERVICE [Doc. #28]

SARAH A. L. MERRIAM, Magistrate Judge.

Pending before the Court is the motion of plaintiff Kenneth G. Walsh ("plaintiff") for permission to serve defendant Thomas St. Denis ("defendant") by alternative means pursuant to Federal Rule of Civil Procedure 4(f)(3). [Doc. #28]. Plaintiff also requests, if necessary, additional time in which to serve defendant under Federal Rule of Civil Procedure 4(m). See id. (hereinafter the "Motion for Alternate Service"). On February 14, 2017, Judge Alvin W. Thompson referred this motion to the undersigned. [Doc. #29]. For the reasons articulated below, the Court GRANTS plaintiff's Motion for Alternate Service [Doc. #28].

1. Background

The Court presumes familiarity with the factual background of this mater, but briefly addresses the procedural history leading to the present motion.

Plaintiff commenced this action on June 16, 2016. [Doc. #1]. On September 2, 2016, plaintiff, having conflicting information regarding defendant's whereabouts, attempted service of the Complaint on defendant via Connecticut's long-arm statute, Conn. Gen Stat. §52-59b(c).1 See Doc. #20 at 3; see also Doc. #7 (return of process). Defendant has not filed an appearance in this matter or answered the Complaint.

On October 6, 2016, plaintiff filed a motion for entry of default pursuant to Federal Rule of Civil Procedure 55(b) [Doc. #8], which the Clerk of the Court granted on October 12, 2016 [Doc. #13]. On November 14, 2016, plaintiff filed a motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b). [Doc. #12]. Defendant has not responded to this motion. On December 21, 2016, Judge Thompson referred the motion for default judgment to the undersigned. [Doc. #15]. On December 22, 2016, this Court entered an Order scheduling an evidentiary hearing on the motion for default judgment, which required plaintiff to submit a pre-hearing memorandum of law. See Doc. #18. This Order required plaintiff to provide the Court with specific information, including: "a discussion of how service of process of the complaint was accomplished, with supporting affidavits if necessary, and the legal authority explaining why that service of process was sufficient[.]" Id. at ¶2.

On January 10, 2017, counsel for plaintiff caused the Court's December 22, 2016, Order to be served on an address believed to belong to defendant via Federal Express, international priority. See Doc. #21. On January 20, 2017, the Court held an evidentiary hearing on plaintiff's motion for default, at which defendant did not appear. [Doc. #24]. At the time of the January 20, 2017, evidentiary hearing, it was unclear whether the Federal Express package had been delivered to defendant at his claimed address in Brazil. Counsel for plaintiff represented that the Court's Order had additionally been sent to defendant via two separate email addresses.

On January 30, 2017, the Court entered an order regarding the sufficiency of service of process in this matter, as the Court was unable to determine whether service of process had been sufficient. See Doc. #26. Specifically, the Court found that, "if, at the time process was served, defendant was residing in Brazil, the record does not clearly demonstrate that plaintiff employed the appropriate means by which to serve a defendant in a foreign country." Doc. #26.2 As such, the Court ordered plaintiff to "supplement the record with any evidence that service of process on defendant was sufficient[,]" and at plaintiff's option, to provide "additional legal authority supporting the sufficiency of service of process." Id. at 6-7. In response to this Order, plaintiff "acknowledge[d] that service of process, although attempted in good faith, ha[d] been unsuccessful." Doc. #28 at 1. Accordingly, because defendant purportedly now resides in Brazil, plaintiff moves for permission to effectuate service by alternative means pursuant to Federal Rule of Civil Procedure 4(f)(3). See Doc. #28. Plaintiff also seeks additional time in which to serve defendant, pursuant to Rule 4(m), if necessary. See id.

2. Applicable Law

Rule 4(f) of the Federal Rules of Civil Procedure sets forth the following procedures for serving an individual in a foreign country:

Fed. R. Civ. P. 4(f). "Generally, there is no hierarchy among the subsections in Rule 4(f). Service under subsection (3) is `neither a last resort nor extraordinary relief. It is merely one means among several which enables service of process on an international defendant.'" Advanced Aerofoil Techs., AG v. Todaro, No. 11CV9505(ALC)(DCF), 2012 WL 299959, at *1 (S.D.N.Y. Jan. 31, 2012) (quoting Rio Props. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002)).

"An alternative method of service under Rule 4(f)(3) `is acceptable if it (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process.'" Fisher v. Petr Konchalovsky Found., No. 15CV9831(AJN), 2016 WL 1047394, at *2 (S.D.N.Y. Mar. 10, 2016) (quoting S.E.C. v. China Intelligent Lighting & Elecs., Inc., No. 13CV5079(JMF), 2014 WL 338817, at *1 (S.D.N.Y. Jan. 30, 2014)). To comport with constitutional notions of due process, the means by which alternative service is effectuated "must be `reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Pfizer Inc. v. Domains By Proxy, No. 3:04CV741(SRU), 2004 WL 1576703, at *1 (D. Conn. July 13, 2004) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). "The decision of whether to order service of process under Rule 4(f)(3) is committed to the sound discretion of the district court." Stream SICAV v. Wang, 989 F.Supp.2d 264, 278 (S.D.N.Y. 2013) (citation and internal quotation marks omitted).

3. Discussion

Here, defendant is purportedly a permanent resident of Brazil, but frequently travels and maintains other residences around the world. See Doc. #28 at 3-6; see also Doc. #28-1, February 10, 2017, Declaration of Kenneth G. Walsh ("Walsh Decl.") at ¶¶5-6. Accordingly, plaintiff requests permission to effectuate service by sending a copy of the Complaint, summons and other introductory orders by the following means: (1) certified mail, return receipt requested, to the Florida address from which defendant's companies currently operate; (2) certified mail, return receipt requested, to the Connecticut attorney who is representing defendant in a Connecticut family court matter; and (3) by email, directly to defendant, using two email addresses believed to be actively monitored by defendant. See Doc. #28 at 6-7.

As noted, defendant is allegedly a permanent resident of Brazil. See St. Denis, No. 16CV441(VAB), Doc. #16 at ¶8 (March 4, 2016, Affidavit of Thomas St. Denis in support of Motion to Dismiss: "By the summer of 2014, as a Brazilian citizen, I left the USA and established my permanent legal residence and abode in Brazil[.]"); id. at ¶35 ("My residence and primary abode is in Brazil."); see also St. Denis, No. 16CV441(VAB), Doc. #17 at ¶25 (March 15, 2016, Supplemental Affidavit of Thomas St. Denis in Support of Motion to Dismiss: "I have maintained a consistent residence in Brazil since 2013. I do not have a residence in the United States.").

"The United States and Brazil both are parties to the Inter-American Convention on Letters Rogatory, Jan. 30, 1975, and the Additional Protocol to the Inter-American Convention on Letters Rogatory, May 8, 1979." (hereinafter the "Convention"). Manela v. Garantia Banking Ltd., 940 F.Supp. 584, 593 n.16 (S.D.N.Y. 1996). Although this Convention "provides for service via letters rogatory[,]" J.B. Custom, Inc. v. Amadeo Rossi, S.A., No. 1:10CV326, 2011 WL 2199704, at *2 (N.D. Ind. June 6, 2011), it is significant that the Convention "does not prohibit alternate means of service." Lyman Morse Boatbuilding Co. v. Lee, No. 2:10CV337(DBH), 2011 WL 52509, at *3 (D. Me. Jan. 6, 2011) (citing Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 640 (5th Cir. 1994)); see also Russell Brands, LLC v. GVD Int'l Trading, SA, 282 F.R.D. 21, 24 (D. Mass. 2012) ("Although. . . both Brazil and the United States are parties to the Convention, the Fifth Circuit, the only circuit court to address the issue, has held that letters rogatory are not the exclusive means for serving process in signatory countries . . . . The Court agrees." (citing Kreimerman, 22 F.3d at 639)); SA Luxury Expeditions, LLC v. Latin Am. for Less, LLC, No. 14CV04085(WHA), 2015 WL 4941792, at *1 (N.D. Cal. Aug. 19, 2015) ("Although the Inter-American Convention and the Additional Protocol provide for the service of process by way of letters rogatory, every court that has addressed the question has found that the convention and additional protocol do not preclude service by other means.") (citing Krierman, 22 F.3d at 647)). Accordingly, plaintiff may effectuate service by alternative means, provided that the proposed procedure "comports with constitutional notions of due process." Fisher, 2016 WL 1047394, at *2.

The Court finds that the method of service proposed by plaintiff comports with constitutional notions of due process as it is reasonably calculated, under the circumstances, to apprise defendant of the pendency of this action and afford defendant an opportunity to present his objections. This is particularly true where, as here, defendant appears for all intents and purposes to be avoiding service of process in this District.3 Not only will defendant receive direct notice of the pendency of this action via two active email accounts, see Doc. #28-2, Klingman Decl. at ¶5, but one of his current attorneys will also receive notice of the pendency of this action. See id. at ¶6; see also Doc. #28-2 at 9-10.4 Plaintiff will also take the additional step of mailing process to defendant at the current address of record for his two companies. See Doc. #28-2, Klingman Decl. at ¶7; see also Doc. #28-2 at 13.

Courts in other districts have sanctioned similar means of alternative service on defendants who reside in countries subject to the Convention, finding that the proposed process comports with constitutional notions of due process. For example the District of Maine permitted alternative service on a Brazilian resident who had been avoiding service. See Lyman, 2011 WL 52509, at *3. In ordering alternative service under Rule 4(f)(3), the Court noted that because plaintiff had instructed his attorneys not to accept service on his behalf, "[i]t may reasonably be assumed that he will reject any attempt at personal service, and it is clear that any attempt at formal service through the Brazilian judicial system will be, if not fruitless, prolonged for such an extensive period of time that evidence and testimony may well be affected." Id. Accordingly, the Court ordered plaintiff to "make service in hand upon the defendant's [local] attorneys . . . and by certified `next day' mail, or its equivalent, upon the defendant's attorney in London[,]" and to "notify the defendant via e-mail of th[e] order and of the ordered service when it has been accomplished." Id.

The District of Massachusetts also sanctioned a similar means of service upon a defendant residing in Brazil, noting that "it is clear that service of process through diplomatic channels will be less expedient and more costly than through certified or international mail." Russell Brands, 282 F.R.D. at 25. Accordingly, the Massachusetts court "accepted Plaintiff's proposed means of service by personal in-hand service on Defendant's Massachusetts attorney, service by email upon Defendant's Virginia attorney, and service via Federal Express at Defendant's Brazilian address." Id. at 26 (footnotes omitted). In reaching this conclusion, the court distinguished other cases which supported the argument that service of process on a Brazilian party should be made via letters rogatory. See id. at 25. Notably the Massachusetts court differentiated between cases implicating service of a subpoena, "which compels action and carries with it the full array of American judicial power," and a notice of complaint, "which simply delivers information." Id. Similarly here, plaintiff does not seek to serve a subpoena, but rather documents providing notice of the Complaint.

In addition to serving defendant's Connecticut attorney, and mailing a copy to the current address of his companies, service by email is also appropriate under the current circumstances. Here, plaintiff has submitted an affidavit that he previously communicated with defendant at the two email address to which he proposes service. See Doc. #28-1, Walsh Decl. at ¶8. Plaintiff's counsel recently sent correspondence to these same addresses and "confirm[s] that [the] email was not returned as undeliverable and presumably was delivered as addressed to Defendant." Doc. #28-2, Klingman Decl. at ¶5. Accordingly, the additional step of sending by email further ensures that the alternative service comports with due process. See Fisher v. Petr Konchalovsky Found., No. 15CV9831(AJN), 2016 WL 1047394, at *2 (S.D.N.Y. Mar. 10, 2016) (where plaintiff "demonstrate[d] that the email [wa]s likely to reach the defendant, then service by email alone comport[ed] with due process" (citation and internal quotation marks omitted)); see also Rio Props., 284 F.3d at 1013, 1016 (Service of process on Costa Rican defendant by email, by mail at a claimed residential address, and on defendant's attorney was sufficient, given plaintiff's "inability to serve an elusive international defendant, striving to evade service of process.").5

Plaintiff also requests an extension of time in which to serve defendant under Rule 4(m). "Although Rule 4(m) creates an exception for service in a foreign country pursuant to subdivision (f), which sets forth procedures for such service, this exception does not apply if, as here, the plaintiff did not attempt to serve the defendant in the foreign country." USHA (India), Ltd. v. Honeywell Int'l, Inc., 421 F.3d 129, 133-34 (2d Cir. 2005) (internal citation and quotation marks omitted). Nevertheless, "district courts have discretion to grant extensions even in the absence of good cause." Zapata v. City of N.Y., 502 F.3d 192, 196 (2d Cir. 2007). Here, the Court finds good cause to grant plaintiff's request for additional time to effectuate service. Plaintiff initially made a good faith effort to serve defendant and was not aware of the service deficiencies until raised by the Court. As previously discussed, the record also suggests that defendant is actively attempting to evade service of process. Further, dismissing the action at this juncture under Rule 4(m) would not only be a waste of judicial resources expended to date, but would also effectively reward defendant for his attempts to evade service thus far. Accordingly, plaintiff's request for additional time to serve defendant is GRANTED, nunc pro tunc

4. Conclusion

Accordingly, based on the foregoing, plaintiff's Motion for Alternate Service [Doc. #28] is GRANTED.

It is hereby ORDERED pursuant to Federal Rules of Civil Procedure 4(f)(3) and 4(m), that within ten (10) days of this Ruling, plaintiff shall cause to be served, either directly, by a Marshal, or other appropriate agent, a copy of plaintiff's June 16, 2016, Complaint [Doc. #1], June 17, 2016, Summons [Doc. #2], all introductory orders [Doc. ##3-6], all pending motions [Doc. ##11, 12], and a copy of this Ruling on defendant, Thomas St. Denis, by each of the following means:

It is further ORDERED that plaintiff shall promptly file a Notice with the Court confirming the above actions, and shall thereafter file a Return of Service or otherwise submit evidence of the receipt of the foregoing.6

This is not a Recommended Ruling. This is an order which is reviewable pursuant to the "clearly erroneous" statutory standard of review. See 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R. 72.2. As such, it is an order of the Court unless reversed or modified by the district judge upon motion timely made.

SO ORDERED.