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In the first federal appellate ruling of its kind, the 9th U.S. Circuit Court of Appeals on March 20 held that a district judge who authorized e-mail service on an evasive foreign defendant violated neither the Federal Rules of Civil Procedure nor the U.S. Constitution. Writing for the panel, 9th Circuit Judge Stephen S. Trott cautioned that the ruling in Rio Properties Inc. v. Rio International Interlink, No. 01-15466, does not mean that federal plaintiffs can use e-mail service as a routine matter. And, the decision leaves undisturbed the rules for service on a domestic defendant, which do not allow electronic service of a complaint unless the defendant’s home state would permit that method, and which allow electronic service of other pleadings only with the defendant’s consent. Also, routine service on foreign defendants must still be made by “internationally agreed means,” as provided in Rule 4(f)(1). But the decision gives district judges more flexibility when plaintiffs ask for custom-fit solutions after routine methods fail to snare elusive foreign defendants. The case arose when Rio Properties (Rio), a Las Vegas casino operator with trademarks on the “Rio” name, asked a federal court to prevent the Costa Rican company Rio International Interlink (RII) from using the name on its online gambling Web sites. Rio had no luck with conventional methods of service because RII’s Web sites gave only an e-mail address. Its U.S. presence was limited to a Miami mailbox for the forwarding of paper mail, and Rio could not locate RII’s Costa Rican address. Rio filed an emergency motion for alternate service of process under Rule 4(f)(3), which authorizes service “by other means not prohibited by international agreement as may be directed by the court.” Nevada U.S. District Judge Philip M. Pro ordered service of the complaint by paper mail to the Miami mailbox and to a Los Angeles attorney hired by RII to investigate the complaint and by e-mail to RII. When RII dragged its feet during discovery, Pro granted the injunction by default and imposed nearly $97,000 in sanctions. Upholding Pro’s rulings, the 9th Circuit specifically rejected RII’s challenges to the form of service. RII argued that Rio could make use of Rule 4(f)(3) only after trying the methods spelled out in Rule 4(f)(2), which include use of diplomatic channels and letters rogatory. Trott found no support for such a hierarchical reading of the two provisions, noting that they are joined by no more than an “or.” Trott also dismissed RII’s claim that e-mail service failed constitutional muster, stating that e-mail “was a means reasonably calculated to apprise RII of the pendency of the lawsuit, and the Constitution requires nothing more.” Michael Costrinsky, managing attorney for corporate litigation for Rio’s parent company, Harrah’s Entertainment, said his client used Pro’s injunction to strip RII of its infringing Web addresses. RII’s appellate attorney, Jerome A. DePalma of Las Vegas, said his client will ask the en banc court to consider whether a method that does not readily allow for confirmation can really be adequate.

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