The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFF'S MOTION TO SERVE DEFENDANT AND FOR ADDITIONAL TIME
Mapping Your Future, Inc. (plaintiff) moves for a court order permitting service of process upon Mapping Your Future Services, Ltd. (defendant) via email because plaintiff's efforts to serve defendant have been unsuccessful. Plaintiff also moves for additional time to serve defendant. Defendant has not responded to these motions. In addition, plaintiff moves for a preliminary injunction to prohibit defendant from engaging in trademark infringement.
Plaintiff filed a complaint against defendant on February 11, 2009, and alleges that defendant is engaging in trademark infringement in violation of the Lanham Act, 15 U.S.C. § 1125. (Comp., Docket 1, at 2.) Plaintiff also seeks a preliminary injunction. Plaintiff is a nonprofit corporation organized and existing under the laws of South Dakota. (Id. at 1.) Defendant appears to be a corporation that is located in the Cayman Islands. (Id.
Plaintiff unsuccessfully attempted to serve defendant on two occasions by using two different methods of service.*fn1 The first attempt involved mailing a copy of the summons and complaint along with a "Request for Service Abroad of Judicial or Extra-judicial Documents"*fn2 on February 13, 2009, to the Clerk of Courts for the Cayman Islands. (Aff. Sander J. Morehead, Docket 12-2, Ex. A.) These papers were returned to plaintiff by the Clerk of the Court in the Cayman Islands along with an Affidavit of Non-Service signed by the Deputy Clerk of Court. (Id., Ex. B, Docket 12-3.) In relevant part, the affidavit signed by the Deputy Clerk explained that he was "unable to serve the document as [the clerk] exhausted all avenues." (Id.)
On July 27, 2009, the court ordered that plaintiff serve defendant by August 24, 2009, or the case would be dismissed without prejudice. (Notice of Rule 4(m), Docket 9.) Plaintiff then attempted to serve defendant by having the Clerk of Court for the District of South Dakota mail the summons, complaint, and other relevant documents to defendant on August 7, 2009. (Aff. Morehead, Ex. C, at 1.) This attempt was also unsuccessful. (Id., Ex. C, at 2.)
Plaintiff requests permission to attempt service of process upon defendant by email because other traditional methods have failed and defendant has responded to plaintiff's past communications through email. Plaintiff also requests additional time to serve defendant because the 120 day time period for serving defendant set out in Rule 4(m) does not apply when the service is to be performed in a foreign country under Rule 4(f) or (4(j)(1). See Fed. R. Civ. P. 4(m).
I. Serving a Foreign Defendant by Email
Rule 4(h) applies to plaintiff's motion because defendant is a foreign corporation. Rule 4(h) states, in relevant part, that "[u]nless federal law provides otherwise... a domestic or foreign corporation... must be served:... (2) 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)." Therefore, plaintiff must serve defendant in accordance with due process and the applicable provisions found in Rule 4(f).
Plaintiff moves this court to authorize service of process by email pursuant to Rule 4(f)(3), which allows for service of process "by other means not prohibited by international agreement, as the court orders." (Brief in Support of Motion Regarding Service of Process, Docket 11, at 3.) Along with the specific requirements set out in Rule 4(f)(3), the method of service must also be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford  an opportunity to present  objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (citations omitted). Thus, in order for plaintiff to be authorized to serve defendant by email, that method of service must not be prohibited by international agreement, must be pursuant to the court's order, and must be reasonably calculated to give notice of the pending action under all of the circumstances. See id.; Fed. R. Civ. P. 4(f)(3).
As noted in Universal Trading & Investment Company v. Kiritchenko, 2007 WL 295548 (N.D. Cal. Jan. 30, 2007), the Cayman Islands is a territory of the United Kingdom, and as such, it is considered to be a signatory to the Hague Convention. Id. at *2. Because Rule 4(f)(3) specifically prohibits service by means that are prohibited by international agreement, the court cannot authorize service of process by a method that contravenes an agreement between the United States and the United Kingdom and its territories.
The Eighth Circuit's interpretation of impermissible service of process under the Hague Convention is clear.*fn3 In Bankston v. Toyota Motor Corporation, 889 F.2d 172 (8th Cir. 1989), the issue before the Eighth Circuit Court of Appeals was whether the Hague Convention, specifically Article 10(a), allowed for the plaintiff to serve a defendant directly by way of registered mail. Id. at 172 (addressing district court's conclusion that "Article 10(a) of the Hague Convention does not permit service of process upon a Japanese corporation by registered mail"). Article 10(a) of the Hague Convention states in relevant part that "[p]rovided the State of destination does not object, the present Convention shall not interfere with-- a) the freedom to send judicial documents, by postal channels, directly to persons abroad." See id. at 173. The Court of Appeals in Bankston reasoned that the drafters of the Hague Convention intended to use the word "send" in Article 10(a) instead of the word "service." Id. at 174 ("It is a 'familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.' " (citations omitted)). According to the appellate court, this choice by the drafters demonstrated that service of process by mail was not permitted under the Hague Convention. Id. ("[W]here a legislative body 'includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [the legislative body] acts intentionally and purposely in the disparate inclusion or exclusion.' " (citations omitted)). The Eighth Circuit Court of Appeals therefore agreed with the trial court's conclusion and held that "sending a copy of a summons and complaint by registered mail to a defendant in a foreign country is not a method of service of process permitted by the Hague Convention."*fn4 Id.
While the facts in Bankston could arguably be distinguished from the facts in this case because different foreign countries are involved, this distinction is not material because both Japan and the United Kingdom, which includes the Cayman Islands, appear to have endorsed a formal method of service with regard to the Hague Convention. Compare id. (stating that "it was 'extremely unlikely' that Japan's failure to object to Article 10(a) was intended to authorize the use of registered mail as an effective mode of service of process, [because] Japan had specifically objected to the much more formal modes of service... available in Article 10(b) and (c)") with Peabody Holding Co. v. Costain Group PLC, 808 F. Supp. 1425, 1439-40 (E.D. Mo. 1992) (noting that " 'documents for service through official channels will be accepted in the United Kingdom only by the central or additional authorities and only from judicial consular or diplomatic officers or other Contracting States' " (citations omitted)); see also Rice v. ...