FILED

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 1 of 22

2016 Sep-01 AM 10:07

U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
TERRENCE P. COLLINGSWORTH,
individually and as agent of Conrad & Scherer, )
LLP, International Rights Advocates, Inc., and )
)
Albert Van Bilderbeek; CONRAD &
)
SCHERER, LLP; WILLIAM R. SCHERER, JR., )
individually and as agent of Conrad & Scherer, )
)
LLP; INTERNATIONAL RIGHTS
)
ADVOCATES, INC.; IVAN ALFREDO
OTERO MENDOZA; FRANCISCO RAMIREZ )
)
CUELLAR; and ALBERT Van BILDERBEEK. )
)
Defendants.
)
)
)
)
DRUMMOND COMPANY, INC.; and
DRUMMOND LTD.

Case No. 2:15-cv-00506-RDP

OPPOSED1

DRUMMOND COMPANY INC. AND DRUMMOND LTD.S MOTION FOR ENTRY OF

AN ORDER ALLOWING ALTERNATIVE METHODS OF SERVICE
ON ALBERT VAN BILDERBEEK AND FRANCISCO RAMIREZ CUELLAR
William Anthony Davis, III (ASB-5657-D65W)
H. Thomas Wells, III (ASB-4318-H62W)
Benjamin T. Presley (ASB-0136-I71P)
STARNES DAVIS FLORIE LLP
P.O. Box 59812
Birmingham, AL 35259
(205) 868-6000
fax: (205) 868-6099

Sara E. Kropf
LAW OFFICE OF SARA KROPF PLLC
1001 G St. NW, Suite 800
Washington, DC 20001
(202) 627-6900

Attorneys for Drummond Company, Inc. and Drummond Ltd.

On August 29, 2016, Drummond asked Defendants Conrad & Scherer, LLP, Terrence P. Collingsworth
and Ivan Otero whether they opposed this motion. Ex. 1. Collingsworth stated that he will oppose it. Id. C&S and
Otero have not responded to Drummonds communication.

i
{B2298215}

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 2 of 22

TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
PROCEDURAL HISTORY.............................................................................................................1
LEGAL ARGUMENT.....................................................................................................................5
I.

ALTERNATIVE SERVICE UNDER FED. R. CIV. P. 4(f) IS APPROPRIATE. .....................5

A.

Drummonds prior attempts at service have been unsuccessful. .................6

B.

Service via e-mail is not prohibited by the law of the countries in which
Van Bilderbeek and Ramirez are believed to reside....................................7

C.

Alternative service is reasonably calculated to apprise Van Bilderbeek and

Ramirez of the pendency of this action and afford them an opportunity to
respond.........................................................................................................9
1.

Service by e-mail ...........................................................................9

2.

Service on Mr. Van Bilderbeek via his U.S. counsel...................14

CONCLUSION..............................................................................................................................16
CERTIFICATE OF SERVICE ......................................................................................................17

ii

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 3 of 22

TABLE OF AUTHORITIES
Cases

Page(s)

AngioDynamics, Inc. v. Biolitec, AG,

780 F.3d 420 (1st Cir. 2015)................................................................................................6
AMTO, LLC v. Bedford Asset Mgmt., LLC,
No. 14-CV-9913, 2015 WL 3457452 (S.D.N.Y. June 1, 2015) ..........................................9
Bravetti v. Liu,
No. 3:12-CV-7492-MAS-TJB, 2013 WL 6501740 (D.N.J. Dec. 11, 2013)........................7
Brookshire Bros. v. Chiquita Brands Intl, Inc.,
No. 05CIV21962COOKEBROWN, 2007 WL 1577771 (S.D. Fla. May 31, 2007)......5, 14
Carrico v. Samsung Elecs. Co.,
No. 15-CV-02087-DMR, 2016 WL 2654392 (N.D. Cal. May 10, 2016) .........................15
Collins v. Doe,
No. CIV.A. H-10-2882, 2010 WL 4954727 (S.D. Tex. Nov. 30, 2010) ...........................11
De Gazelle Grp., Inc. v. Tamaz Trading Establishment,
817 F.3d 747 (11th Cir. 2016) .............................................................................................6
Ehrenfeld v. Salim a Bin Mahfouz,
No. 04 Civ. 9641, 2005 WL 696769 (S.D.N.Y. Mar. 23, 2005) .......................................15
Enovative Techs., LLC v. Leor,
622 F. Appx 212 (4th Cir. 2015) ........................................................................................6
FMAC Loan Receivables v. Dagra,
228 F.R.D. 531 (E.D. Va. 2005) ........................................................................................15
Fraserside IP LLC v. Letyagin,
280 F.R.D. 630 (N.D. Iowa 2012) .....................................................................................11
Freedom Watch, Inc. v. Organization of Petroleum Producing Countries,
766 F.3d 74 (D.C. Cir. 2014) .............................................................................................14
Global Impex, Inc. v. Specialty Fibres LLC,
77 F. Supp. 3d 1268 (N.D. Ga. 2015) ................................................................................13
In re Intl Telemedia Associates, Inc.,
245 B.R. 713 (Bankr. N.D. Ga. 2000) .................................................................................9

iii

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 4 of 22

Knit With v. Knitting Fever, Inc.,

No. CIV.A. 08-4221, 2010 WL 4977944 (E.D. Pa. Dec. 7, 2010)................................8, 14
Lexmark Intl, Inc. v. Ink Techs. Printer Supplies, LLC,
291 F.R.D. 172 (S.D. Ohio 2013) ........................................................................................8
LG Elecs., Inc. v. ASKO Appliances, Inc.,
No. 08828 (JAP), 2009 WL 1811098 (D. Del. June 23, 2009) .......................................14
Lipenga v. Kambalame,
No. GJH-14-3980, 2015 WL 9484473 (D. Md. Dec. 28, 2015)..........................................9
Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 70 S. Ct. 652 (1950)................................................................................5, 12
Prewitt Enterprises, Inc. v. Organization of Petroleum Exporting Countries,
353 F.3d 916, 921 (11th Cir. 2003) .................................................................................5, 6
Rio Properties, Inc. v. Rio Intl Interlink,
284 F.3d 1007(9th Cir. 2002) ....................................................................5, 6, 7, 10, 11, 12
RSM Prod. Corp. v. Fridman,
No. 06 CIV. 11512 (DLC), 2007 WL 2295907 (S.D.N.Y. Aug. 10, 2007) ......................14
Sulzer Mixpac AG v. Medenstar Indus. Co.,
312 F.R.D. 329 (S.D.N.Y. 2015) .....................................................................................8, 9
Toyo Tire & Rubber Co. v. CIA Wheel Grp.,
No. 15-0246-DOC (DFMX), 2016 WL 1251008 (C.D. Cal. Mar. 25, 2016)........6, 7, 8, 11
Tracfone Wireless, Inc. v. AU Optronics Corp. (In re TFTLCD (Flat Panel) Antitrust Litig.),
270 F.R.D. 535 (N.D. Cal. 2010).................................................................................14, 15
Tracfone Wireless, Inc. v. Hernandez,
126 F. Supp. 3d 1357 (S.D. Fla. 2015) ..............................................................................12
U.S. Commodity Futures Trading Commn v. Aliaga,
272 F.R.D. 617 (S.D. Fla. 2011)..............................................................................6, 12, 14
U.S. ex rel. Barko v. Halliburton Co.,
952 F. Supp. 2d 108 (D.D.C. 2013) .................................................................................6, 9
WhosHere, Inc. v. Orun,
No. 1:13-CV-00526-AJT, 2014 WL 670817 (E.D. Va. Feb. 20, 2014) ............................11

iv

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 5 of 22

Statutes and Rules

Page(s)

Fed. R. Civ. P. 4(f)................................................................................................................. passim

Other Sources of Authority

Page(s)

62B Am. Jur. 2d Process 310......................................................................................................12

Hague Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters.................................................................................................................7, 8, 9

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 6 of 22

COME NOW Drummond Company, Inc. and Drummond Ltd. (Drummond), and
pursuant to Rule 4(f) of the Federal Rules of Civil Procedure, request the entry of an order
authorizing alternative service on Defendants Albert Van Bilderbeek and Francisco Ramirez
Cuellar. Specifically, Drummond requests that the Court permit Mr. Ramirez to be served via
email, and Mr. Van Bilderbeek to be served via both email and through his U.S. counsel.
PROCEDURAL HISTORY
Drummond filed this lawsuit on March 27, 2015. See Doc. 1. Albert Van Bilderbeek
(Van Bilderbeek) and Francisco Ramirez Cuellar (Ramirez) are named defendants in this
action. Id. at 15 & 17. On March 31, 2015, Drummond sent a Notice of Lawsuit and Request
to Waive Service of a Summons to both Van Bilderbeek and Ramirez via e-mail. Exs. 2 & 3.2
Neither defendant responded to these communications.
The

email

address

Drummond

utilized

for

Van

Bilderbeek

was

albert@vanbilderbeek.com, which is one of the email addresses provided by Collingsworth in his

recent response to Drummonds interrogatory seeking Van Bilderbeeks current contact
information. Ex. 4 at 5. Drummond never received any automated e-mail message stating that
this email was undeliverable. Ex. 5 (Presley Decl.) at 3.
With respect to Ramirez, Drummond sent the Notice and Waiver Request to three
different email addresses that he has utilized franciscoramirezcuellar@gmail.com,
framirez_cuellar@hotmail.com, and abogados.aso@hotmail.com. Ex. 3. Two of those email
addresses also appear in Collingsworths recent interrogatory response seeking Ramirezs current
contact information. Ex. 4 at 5. Drummond received an automated email delivery failure
2

Drummond also sent a copy of the Complaint and a Notice of Lawsuit and Request to Waive Service to
Defendant Ivan Otero. Ex. 6. Otero has since appeared in this case and has not raised any service related
objections. See Doc. 46 generally; see also Ex. 7 (Nov. 12, 2015 Paulk email) (stating that Otero was served in late
October and that Mr. Otero will not raise any service-related objections if Drummond will agree to a 45-day
extension, which Drummond agreed to).

1
{B2298215}

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 7 of 22

message with respect to framirez_cuellar@hotmail.com, Ex. 8, but never received any such
automated delivery failure message with respect to the other two email addresses. Ex. 5 (Presley
Decl.) at 4.
On October 5, 2015, having received no confirmatory response to its Notice and Waiver
requests, Ex. 3, Drummond requested and this Court issued an Alias Summons for Ramirez.
Doc. 28. On October 6, 2015, Drummond sent a copy of the Summons and the Complaint to
Ramirez via U.S. Certified Mail (Drummond had no physical address for Van Bilderbeek to
which to mail the Summons and Complaint). Ex. 9. To date, Drummond has not received any
confirmation from the United States Postal Service that this mailing was received by Mr.
Ramirez (nor has the mailing been returned), and Ramirez has not appeared in this case.3
Although Ramirez did not respond to Drummonds initial email enclosing the Notice of
Lawsuit and Request to Waive Service of a Summons, Ex. 3, or its later mailing enclosing a copy
of the Summons and Complaint, Ex. 9, he clearly received them.

In late October 2015,

Drummonds counsel began receiving automated, form emails from unknown individuals with
the subject line Protegen Francisco Ramirez Cuellar Protect Francisco Ramirez Cuellar.
Ex. 10. Those emails appear to have originated from a website maintained by Industriall Global
Union and an article titled Colombia: trade union activist Francisco Ramirez Cuellar must be
kept safe!

See http://www.industriall-union.org/colombia-trade-union-activist-francisco-

ramirez-cuellar-must-be-kept-safe (last accessed August 31, 2016). Included in that article is a

Take Action icon which, when clicked, brings up a form email containing the same language
in the form e-mails received by Drummonds counsel. Ex. 11. Another website, apparently run
by the Latin American and Caribbean Solidarity Network, asks its visitors to write to
3

Collingsworths recent interrogatory response states that Defendants are certain [Ramirez] no longer
operates out of this address, and further states that Defendants do not have a current phone number for Mr.
Ramirez and do not have an address for any current office or residence. Ex. 4 at 4.

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 8 of 22

aps@starneslaw.com,

bpresley@starneslaw.com

and

atencionalusario@drummondltd.com,

calling for the immediate termination of all legal actions by Drummond against Francisco
Ramirez Cuellar. See http://franciscoramirezcuellar.site40.net/index.html (last visited August
31,

2016);

http://lacsn.weebly.com/francisco-ramirez-cuellar---educational-tour.html

(last

visited August 31, 2016).

Significantly, the form emails were sent not just to Drummonds counsel whose e-mail
address could have been gleaned from public filings but also to Drummonds counsels
paralegal (aps@starneslaw.com), who sent the Notice of Lawsuit and Waiver Request via email
to Van Bilderbeek and Ramirez. See Exs. 2 & 3. The only fathomable reason the undersigneds
paralegal could have been included as a recipient for such form emails is that her email to
Ramirez was sent by Ramirez to the people that operate these websites.
Despite Drummonds efforts to locate Van Bilderbeek and Ramirez, Drummond has been
unable to locate them. On April 21, 2016, this Court permitted Drummond to proceed with
limited discovery into the whereabouts of Van Bilderbeek and Ramirez. Doc. 75. Collingsworth
responded to interrogatories asking for all contact information for Francisco Ramirez and Albert
Van Bilderbeek for the past five years by stating, Defendants do not have a current phone
number for Mr. Ramirez and do not have an address for any current office or residence and
Defendants are certain he no longer operates out of any of several prior addresses. Ex. 4 at 4.
One of those addresses is the same address at which Drummond attempted to serve Ramirez with
a copy of the Complaint. Compare Doc. 28 at 2 with Ex. 9.4 Until Drummond received Mr.
Collingsworths recent interrogatory response, it was unaware that Mr. Ramirez was no longer
located at this address.

Furthermore, Defendants have repeatedly accused Drummond of

Based on Collingsworths statement that he is certain that Francisco Ramirez is not at any of these three
physical addresses, as well as his admission that he has used email to communicate with Ramirez, it is a virtual
certainty that Collingsworth knows how to reach Francisco Ramirez and where he is located.

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 9 of 22

attempting to retaliate against, threaten, or otherwise harm Ramirez.

Indeed, after merely

mailing Ramirez a Summons and the Complaint, Drummonds counsel was bombarded with
emails suggesting Ramirezs safety was at risk. Ex. 10. Collingsworths interrogatory responses
regarding Ramirezs location also contend that Ramirezs physical location would be highly
confidential for security reasons. Ex. 4 at 5. Drummond, therefore, has been extremely
cautious in its efforts to locate Ramirez. Drummond has no desire to have a private investigator
search for Ramirez for purposes of service, only to have Ramirez and/or the other Defendants
claim Ramirez was somehow being targeted or threatened.5
With respect to Albert Van Bilderbeek, other than his two email addresses,
albert14111@yahoo.com and albert@vanbilderbeek.com, Drummond has been unable to
uncover any current contact information for him. Prior to the filing of this action, Drummond
retained the services of a private investigation firm in an attempt to locate Mr. Van Bilderbeek
for purposes of service. Ex. 12 (Wells Decl.). Drummonds efforts have been unsuccessful. Id.
After receiving Collingsworths recent interrogatory responses, which contend that Van
Bilderbeeks contact information is highly confidential for security reasons, Ex. 4 at 5,
Drummond suspended its efforts to locate Van Bilderbeek, to avoid any spurious allegations by
Van Bilderbeek or the other Defendants that Drummond is attempting to do Van Bilderbeek
harm.
Accordingly, given Drummonds inability to locate either Ramirez or Van Bilderbeek,
and the claims that both of these defendants fear for their security, Drummond requests that it be
permitted to serve them through email and/or U.S. counsel, in accordance with Fed. R. Civ. P.
4(f)(3).
5

It is notable that Mr. Ramirez apparently feels comfortable in Canada (and Europe) where he is targeting
Drummonds customers. See Doc. 72-1.

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 10 of 22

LEGAL ARGUMENT
I.

ALTERNATIVE SERVICE UNDER FED. R. CIV. P. 4(f) IS APPROPRIATE.

Fed. R. Civ. P. 4(f) applies where the individual to be served is in a foreign country. In

pertinent part, it provides that [u]nless federal law provides otherwise, an individualother
than a minor, an incompetent person, or a person whose waiver has been filedmay be served at
a place not within any judicial district of the United States: . . . (3) by other means not prohibited
by international agreement, as the court orders. Alternative service under Rule 4(f)(3) is by no
means extraordinary, and district courts have discretion as to what alternative means of service
are appropriate in each given case:
The invocation of Rule 4(f)(3), therefore, is neither a last resort nor extraordinary
relief. See id. So especially in a circumstance where service upon a foreign
corporation under Rule 4(f)(1) or 4(f)(2) has been cumbersome, district courts
have broad discretion under Rule 4(f)(3) to authorize other methods of service
that are consistent with due process and are not prohibited by international
agreements.
Brookshire Bros. v. Chiquita Brands Intl, Inc., No. 05CIV21962COOKEBROWN, 2007 WL
1577771, at *2 (S.D. Fla. May 31, 2007) (citing Prewitt Enterprises, Inc. v. Organization of
Petroleum Exporting Countries, 353 F.3d 916, 921, 927 (11th Cir. 2003) (applying an abuse of
discretion standard to the denial of a motion for alternative service under Rule 4(f)(3)). The
alternative method of service . . . must comport with constitutional notions due process. To meet
this requirement, the alternative method of service must be reasonably calculated, under all the
circumstances, to apprise the interested parties of the pendency of the action and afford them an
opportunity to present their objections. U.S. Commodity Futures Trading Commn v. Aliaga,
272 F.R.D. 617, 620 (S.D. Fla. 2011) (quoting Rio Properties, Inc. v. Rio Intl Interlink, 284 F.3d
1007, 101617 (9th Cir. 2002), quoting in turn Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314, 70 S. Ct. 652 (1950)).

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 11 of 22

Factors examined by courts in determining whether to authorize alternative methods of

service include the following:
(1) Whether the alternative method proposed is reasonably calculated to apprise a
defendant of the pendency of the action and afford him an opportunity to respond.
Rio Properties, 284 F.3d at 1016-18;
(2) Whether the method of alternative service is prohibited by the law of the country in
which the individual sought to be served resides. Prewitt Enterprises, 353 F.3d at
927-28; and
(3) A litigants prior attempts at service. Toyo Tire & Rubber Co. v. CIA Wheel Grp.,
No. 15-0246-DOC (DFMX), 2016 WL 1251008, at *3 (C.D. Cal. Mar. 25, 2016).
Without exception, each of these factors weighs in favor of allowing Drummond to serve Van
Bilderbeek and Ramirez through alternative means pursuant to Fed. R. Civ. P. 4(f)(3).
A.

Drummonds prior attempts at service have been unsuccessful.

A litigant need not make exhaustive efforts to serve a foreign defendant through
traditional means before service via email (or any other alternative form) is appropriate. See De
Gazelle Grp., Inc. v. Tamaz Trading Establishment, 817 F.3d 747, 750 (11th Cir. 2016) (If a
party cannot, or chooses not to, serve a defendant abroad using one of the methods specified in
Rule 4(f)(1) and (2), the party may accomplish service pursuant to Rule 4(f)(3)) (emphasis
added).6

Even if this were a prerequisite, however, it is met here.

As explained supra,

See also Rio Properties, 284 F.3d at 1015 (Rule 4(f)(3) is one of three separately numbered subsections
in Rule 4(f), and each subsection is separated from the one previous merely by the simple conjunction or. ...
Moreover, no language in rules 4(f)(1) or 4(f)(2) indicates their primacy, and certainly rule 4(f)(3) includes no
qualifiers or limitations which indicate its availability only after attempting service of process by other means.);
AngioDynamics, Inc. v. Biolitec, AG, 780 F.3d 420, 429 (1st Cir. 2015) (By its plain terms, Rule 4(f)(3) does not
require exhaustion of all possible methods of service before a court may authorize service by other means, such as
service through counsel and by email.); Enovative Techs., LLC v. Leor, 622 F. Appx 212, 214 (4th Cir. 2015)
(Rule 4(f)(3) does not denote any hierarchy or preference for one method of service over another.) (citing Rio
Props., 284 F.3d at 1015); U.S. ex rel. Barko v. Halliburton Co., 952 F. Supp. 2d 108, 116 (D.D.C. 2013) (holding

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 12 of 22

Drummonds prior attempts at service on Ramirez have been unsuccessful. See pages 1-5 supra.
And despite its efforts, Drummond has not been able to locate Van Bilderbeek for service
purposes.

Id.

Moreover, Defendants have asserted that Ramirez and Van Bilderbeeks

respective physical locations would be highly confidential for security reasons.

Ex. 4

(Collingsworths May 19, 2016 Interr. Resp.) at 4-5. Accordingly, Drummond is hesitant to
further pursue its efforts to locate either Ramirez or Van Bilderbeek, lest its efforts be
mischaracterized as some form of threat.

For these reasons, Drummonds prior service

attempts weigh in favor of allowing alternative service.

B.

Service via e-mail is not prohibited by the law of the countries in which Van
Bilderbeek and Ramirez are believed to reside.

Colombia and the Netherlands are signatories to the Hague Convention of the Service
Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague
Service Convention).7 For two reasons, the Hague Service Convention does not preclude the
alternative service that Drummond requests. First, Article 1 of the Hague Service Convention
provides that [t]he present Convention shall apply in all cases, in civil or commercial matters,
where there is occasion to transmit a judicial or extrajudicial document for service abroad. This
Convention shall not apply where the address of the person to be served with the document
is not known. Ex. 13 (Hague Service Convention, art. 1) (emphasis added). See also Toyo
Tire, 2016 WL 1251008, at *3 (authorizing alternative service via e-mail and holding that the
Hague Service Convention was inapplicable because the defendants addresses were unknown);
Bravetti v. Liu, No. 3:12-CV-7492-MAS-TJB, 2013 WL 6501740, at *3 (D.N.J. Dec. 11, 2013)

Rule 4(f)(3) is neither a last resort nor one of extraordinary means, but is merely one means among several
which enables service of process on an international defendant) (citing Rio Properties, 284 F.3d at 1015).
7

On information and belief, Drummond understands that Francisco Ramirez is a Colombian citizen and
Albert Van Bilderbeek is a Dutch citizen.

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 13 of 22

([T]he Court finds that the Hague Convention does not apply because the address of the persons
to be served is unknown.). Here, Drummond does not know Ramirez or Van Bilderbeeks
respective addresses. Accordingly, the Hague Service Convention is inapplicable on its face.
More importantly, even if it were applicable, the Hague Service Convention does not
expressly prohibit the forms of alternative service Drummond seeks. First, the Hague Service
Convention is silent regarding service via e-mail or service through a foreign defendants U.S.
counsel. Lexmark Intl, Inc. v. Ink Techs. Printer Supplies, LLC, 291 F.R.D. 172, 174-75 (S.D.
Ohio 2013) (collecting cases and holding that [v]arious courts have agreed that service by email
is not prohibited by the Hague Convention); Toyo Tire, 2016 WL 1251008, at *3 (the Hague
Convention does not expressly prohibit service by email); Knit With v. Knitting Fever, Inc., No.
CIV.A. 08-4221, 2010 WL 4977944, at *5 (E.D. Pa. Dec. 7, 2010) (holding that the Court finds
that service of Defendants Designer Yarns and Filatura through their U.S. counsel, Joshua
Slavitt, will comport with due process where the defendants were located in England and Italy,
both of which were signatories to the Hague Convention).
Second, courts have found that whether a signatory country objected to Article 10 of the
Hague Service Convention which provides that the Convention shall not interfere with other
forms of service to be an important factor in determining whether alternative service methods
were precluded by international law. See Sulzer Mixpac AG v. Medenstar Indus. Co., 312 F.R.D.
329, 331 (S.D.N.Y. 2015) (Certain cases have suggested that service by email is inappropriate
when the defendant is located in a country that has objected to service by postal mail under
Article 10 of the Hague Convention.).8

Neither Colombia nor the Netherlands, however,

Notably, even where a signatory objects to Article 10, the vast majority of courts find that such an
objection does not preclude alternative service via e-mail. See Lexmark Intl, Inc., 295 F.R.D. at 261 (Both China
and Poland object to Article 10 of the Hague Convention under which service by postal channels would be
permissible. Various courts have agreed that service by email is not prohibited by the Hague Convention.)

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 14 of 22

objected to Article 10(a) of the Hague Service Convention.9 Accordingly, and assuming for the
sake of argument that the Hague Service Convention did apply, this factor is not present in the
instant case. See Lipenga v. Kambalame, No. GJH-14-3980, 2015 WL 9484473, at *4 (D. Md.
Dec. 28, 2015) (Malawi has not objected to Article 10 of the Hague Service Convention, nor
has it objected to service of process through alternate channels including email and social media
websites. Thus, service via email and Facebook is appropriate in this case under Rule 4(f)(3),
and, accordingly the Court will order that process be served through those channels.).
Nor has Drummond located any other international law or agreement that prohibits
service via e-mail in the Netherlands or Colombia. See AMTO, LLC v. Bedford Asset Mgmt.,
LLC, No. 14-CV-9913, 2015 WL 3457452, at *7 (S.D.N.Y. June 1, 2015) (authorizing
alternative service via email on a Russian defendant and holding that the Court is not aware of
any other international agreement or Russian law that prohibits service via email); Barko, 952
F. Supp. 2d at 117 (Service by email might be improper if this Court were located in Jordan, but
without an international agreement to the contrary, this Court can authorize a plaintiff to serve a
defendant by the necessary means per Rule 4(f)(3).).
C.

Alternative service is reasonably calculated to apprise Van Bilderbeek and

Ramirez of the pendency of this action and afford them an opportunity to
respond.
1.

Service by e-mail

The first reported federal decision authorizing service via email came from within this
Circuit. In In re Intl Telemedia Associates, Inc., 245 B.R. 713 (Bankr. N.D. Ga. 2000), the
(collecting cases); Sulzer Mixpac, 312 F.R.D. at 331-32 (the Court finds more persuasive the reasoning of several
courts that have declined to extend countries objections to specific forms of service permitted by Article 10 of the
Hague Convention, such as postal mail, to service by other alternative means, including email) (collecting cases).
9

See Ex. 14 (Table reflecting applicability of Articles 8(2), 10(a), (b) and (c), 15(2) and 16(3) of the Hague
Service Convention). Available at https://www.hcch.net/en/instruments/conventions/specialised-sections/service
(last visited August 31, 2016).

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 15 of 22

Northern District of Georgia authorized service via e-mail on a nonresident who was constantly
moving from foreign country to foreign country, and refused to provide the bankruptcy trustee
with any means of contacting him other than permanent facsimile number and electronic mail
address. Two years later, in 2002, the Ninth Circuit issued the first published, federal appellate
opinion authorizing service by email in Rio Properties, Inc. v. Rio Intl Interlink, 284 F.3d 1007
(9th Cir. 2002). In pertinent part, the Ninth Circuit held as follows:
[W]e turn to the district courts order authorizing service of process on RII by
email at email@betrio.com. We acknowledge that we tread upon untrodden
ground. The parties cite no authority condoning service of process over the
Internet or via email, and our own investigation has unearthed no decisions by the
United States Courts of Appeals dealing with service of process by email and only
one case anywhere in the federal courts. Despite this dearth of authority, however,
we do not labor long in reaching our decision. Considering the facts presented by
this case, we conclude not only that service of process by email was properthat
is, reasonably calculated to apprise RII of the pendency of the action and afford it
an opportunity to respondbut in this case, it was the method of service most
likely to reach RII.
To be sure, the Constitution does not require any particular means of service of
process, only that the method selected be reasonably calculated to provide notice
and an opportunity to respond. See Mullane, 339 U.S. at 314, 70 S.Ct. 652. In
proper circumstances, this broad constitutional principle unshackles the federal
courts from anachronistic methods of service and permits them entry into the
technological renaissance. As noted by the court in New England Merchants, in
granting permission to effect service of process via telex on Iranian defendants:
Courts ... cannot be blind to changes and advances in technology. No
longer do we live in a world where communications are conducted solely
by mail carried by fast sailing clipper ... ships. Electronic communication
via satellite can and does provide instantaneous transmission of notice and
information. No longer must process be mailed to a defendant's door when
he can receive complete notice at an electronic terminal inside his very
office, even when the door is steel and bolted shut.
495 F. Supp. at 81. We agree wholeheartedly.
Although communication via email and over the Internet is comparatively new,
such communication has been zealously embraced within the business
community. RII particularly has embraced the modern e-business model and
profited immensely from it. In fact, RII structured its business such that it could

10

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 16 of 22

be contacted only via its email address. RII listed no easily discoverable street
address in the United States or in Costa Rica. Rather, on its website and print
media, RII designated its email address as its preferred contact information.
Unlike the Iranian officials in New England Merchants, RII had neither an office
nor a door; it had only a computer terminal. If any method of communication is
reasonably calculated to provide RII with notice, surely it is emailthe method of
communication which RII utilizes and prefers. In addition, email was the only
court-ordered method of service aimed directly and instantly at RII, as opposed to
methods of service effected through intermediaries like IEC and Carpenter.
Indeed, when faced with an international e-business scofflaw, playing hide-andseek with the federal court, email may be the only means of effecting service of
process. Certainly in this case, it was a means reasonably calculated to apprise RII
of the pendency of the lawsuit, and the Constitution requires nothing more.
Id. at 1016-18.
Since the Rio Properties decision nearly 15 years ago, numerous federal courts have
authorized service by email under Fed. R. Civ. P. 4(f)(3). See Toyo Tire, 2016 WL 1251008 at
*3 (authorizing service by email on Chinese defendants); Collins v. Doe, No. CIV.A. H-10-2882,
2010 WL 4954727, at *1 (S.D. Tex. Nov. 30, 2010) (collecting cases and holding that [s]everal
courts have applied provisions of Rule 4 of the Federal Rules of Civil Procedure to authorize email service when the record discloses diligent efforts by the plaintiff to obtain a physical
address to effect traditional service, that the defendant does business on-line (particularly
business related to the subject of the suit), and that the defendant has recently communicated
using the e-mail address the plaintiff proposes to use for service.); Fraserside IP LLC v.
Letyagin, 280 F.R.D. 630 (N.D. Iowa 2012) (alternative service of process on foreign defendant
through e-mail was warranted at e-mail addresses defendant used to communicate with plaintiff
and at e-mail addresses of attorneys who represented defendant in pre-lawsuit negotiations);
WhosHere, Inc. v. Orun, No. 1:13-CV-00526-AJT, 2014 WL 670817, at *4 (E.D. Va. Feb. 20,
2014) (The court finds that service of process through all four means of service, two email and
two social networking accounts ostensibly belonging to defendant, comports with due process

11

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 17 of 22

because it is reasonably calculated under the circumstances to provide defendant notice of this
suit. Collectively, these four methods are highly likely to provide defendant notice of this
litigation, because defendant himself provided plaintiff with these email contacts, and also
referred plaintiff to the social networking profiles which appear to be regularly viewed and
maintained by defendant.); Tracfone Wireless, Inc. v. Hernandez, 126 F. Supp. 3d 1357 (S.D.
Fla. 2015) (authorizing service via e-mail on an individual in Belize); U.S. Commodity Futures
Trading Comn v. Aliaga, 272 F.R.D. 617 (S.D. Fla. 2011) (allowing service via e-mail on Costa
Rican defendants); see also 62B Am. Jur. 2d Process 310 (Service of process by e-mail may
be proper upon a foreign defendant, even though the law of the foreign defendants country does
not allow service by email, where good cause existed to serve the defendant by e-mail and there
is no international agreement prohibiting such service; the court may authorize such service by email as long as it takes foreign law into consideration and limits the offense thereto.).
Service via e-mail is, without question, reasonably calculated to apprise Van Bilderbeek
and Ramirez of the pendency of this action and afford them an opportunity to respond. Rio
Properties, 284 F.3d at 1017 (citing Mullane, 399 U.S. at 314). Evidence discovered in the
defamation action confirms that email is the most effective and commonly used method of
reaching Van Bilderbeek and Ramirez, as it shows that both Van Bilderbeek and Ramirez have
extensively used email to communicate with Collingsworth and other C&S agents for years.
Many of those communications directly pertain to litigation against Drummond. See Defamation
Doc. 62-6 (June-July 2010 email chain between Collingsworth and Van Bilderbeek
(albert@vanbilderbeek.com) in which Collingsworth states he is look[ing] forward to meeting
and together closing down Drummond); Ex. 15 (March 2012 email chain with Collingsworth,
Van Bilderbeek and Ramirez discussing getting as much press as possible in the Netherlands).

12

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 18 of 22

Indeed, Defendants privilege log in the defamation action contains hundreds of email
communications with Van Bilderbeek and Ramirez.
Under these circumstances, service via e-mail is reasonably calculated to apprise both
defendants of the pendency of this action and afford them an opportunity to appear and present
their objections. See Tracfone Wireless, 126 F. Supp. 3d at 1365 (Where, as here, a defendant
is known to utilize the email address, courts of this circuit have found that email delivery is
appropriate under the circumstances.); Global Impex, Inc. v. Specialty Fibres LLC, 77 F. Supp.
3d 1268, 1271 (N.D. Ga. 2015) (allowing email service where it was clear that Defendant ha[d]
access to and regularly relie[d] on email correspondence to conduct business and to handle its
affairs).
In fact, it is a virtual certainty that both of these defendants already are fully aware of this
action and the allegations of the Complaint. See pages 1-5 supra. With respect to Albert Van
Bilderbeek, Collingsworth ostensibly still maintains an attorney-client relationship with him, Ex.
4 at 5, and has apparently communicated directly with Van Bilderbeek regarding this case and
his responses to Drummonds discovery requests seeking Van Bilderbeeks contact information.
Ex. 16 (June 6, 2016 Collingsworth email). In fact, Van Bilderbeek appeared before this Court
in the defamation action.

See Defamation Docs. 272, 273, 274 (notices of appearance of

Alabama counsel on Van Bilderbeeks behalf in Drummond Company, Inc. v. Terrence P.

Collingsworth, et al., 2:11-cv-3695-RDP (N.D. Ala)). He has also filed pleadings seeking to
oppose Drummonds third party discovery efforts aimed at witness payments. Defamation Docs.
252 (Motion to Quash Drummonds Subpoena to Credit Suisse AG by Van Bilderbeek) & 275
(Reply in Support of Motion to Quash Drummonds Subpoena to Credit Suisse AG by Van
Bilderbeek). Notably, all of those filings post-date the filing of the RICO Complaint in this case.

13

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 19 of 22

Ramirez is also almost certainly aware of this lawsuit.

As explained supra, after

Drummonds counsel sent a Notice of Lawsuit and Waiver of Service Request, as well as a copy
of the RICO Complaint, to Ramirez via e-mail, Drummonds counsel and paralegal began
receiving automated e-mail messages demanding for the Protection of Francisco Ramirez. See
Ex. 10. A website was also created publishing the email addresses of Drummonds counsel and
their paralegal and calling for the immediate termination of all legal actions by Drummond
against Francisco Ramirez Cuellar.

See http://franciscoramirezcuellar.site40.net/index.html

(last visited August 31, 2016).

2.

Service on Mr. Van Bilderbeek via his U.S. counsel

Between May 3, 2010, see Defamation Doc. 69-51, and December 2015, Van Bilderbeek
was apparently represented by Collingsworth and C&S. See Defamation Doc. 390 (Sept. 1-3
Hrg. Tr.) at 432:11-25. Though Collingsworth has since disassociated from C&S, he apparently
continues to represent Van Bilderbeek, as he has objected to providing Van Bilderbeeks contact
information citing the attorney-client privilege. Ex. 4 at 5.
A number of courts . . . have sanctioned service on United States counsel as an
alternative means of service under Rule 4(f)(3) without requiring any specific authorization by
the defendant for the recipient to accept service on its behalf.

Freedom Watch, Inc. v.

Organization of Petroleum Producing Countries, 766 F.3d 74, 83 (D.C. Cir. 2014) (citing
Aliaga, 272 F.R.D. at 61920). See also LG Elecs., Inc. v. ASKO Appliances, Inc., No. 08828
(JAP), 2009 WL 1811098, at * 4 (D. Del. June 23, 2009); RSM Prod. Corp. v. Fridman, No. 06
CIV. 11512 (DLC), 2007 WL 2295907, at *16 (S.D.N.Y. Aug. 10, 2007); Brookshire Bros.,
2007 WL 1577771, at *2; Knitting Fever, 2010 WL 4977944 at *4 (Repeatedly, courts around
the country have found that service upon a foreign defendant through counsel is appropriate to

14

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 20 of 22

prevent further delays in litigation.); Tracfone Wireless, Inc. v. AU Optronics Corp. (In re TFT
LCD (Flat Panel) Antitrust Litig.), 270 F.R.D. 535, 538 (N.D. Cal. 2010) (granting plaintiffs
motion to serve foreign defendant through its U.S. counsel); FMAC Loan Receivables v. Dagra,
228 F.R.D. 531, 534 (E.D. Va. 2005) (authorizing service on foreign defendants United States
lawyer where defendant had been in constant communications with his attorney).10
Service on Van Bilderbeek via his U.S. counsel is especially appropriate here because his
U.S. counsel is representing him in connection with actual or potential litigation against
Drummond. See Defamation Doc. 69-51 (Attorney-Client Agreement between Van Bilderbeek
and Collingsworth); Defamation Docs. 252 (Motion to Quash Drummonds Subpoena to Credit
Suisse AG by Van Bilderbeek) & 275 (Reply in Support of Motion to Quash Drummonds
Subpoena to Credit Suisse AG by Van Bilderbeek). See Ehrenfeld v. Salim a Bin Mahfouz, No.
04 Civ. 9641, 2005 WL 696769, at *3 (S.D.N.Y. Mar. 23, 2005) (authorizing service on foreign
defendants United States counsel where counsel was in communication with Defendant in
relation to the pending legal proceedings in the United States . . . and will know how to locate
Defendant).11
Pursuant to Rule 4(f)(3), therefore, Drummond also requests that it be permitted to effect
service on Mr. Van Bilderbeek through service on his U.S. counsel, specifically, Mr.
Collingsworth and/or the law firm of Campbell Guin Williams Guy & Gidiere LLC.
10

The fact that Colombia and the Netherlands are signatories to the Hague Service Convention does not
preclude service on Ramirez or Van Bilderbeeks U.S. counsel. See Carrico v. Samsung Elecs. Co., No. 15-CV02087-DMR, 2016 WL 2654392, at *4 (N.D. Cal. May 10, 2016) (The Republic of Korea is a party to the Hague
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov.
15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. As a signatory to the Hague Convention, the Republic of Korea has
objected to Article 10 of the Hague Convention, which allows service to be effected by postal channels, and to
Article 8 which allows service to be effectuated through diplomatic or consular agents. Plaintiffs do not attempt
service by postal channels to Park, or through diplomatic or consular agents. Nothing in the Hague Convention bars
Plaintiffs requested service on Park through her attorney.).
11

Not only is Drummonds defamation case against Collingsworth and C&S pending in this same court,
but it has numerous overlapping issues, such the nature, extent and scope of Defendants payments to witnesses.

15

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 21 of 22

CONCLUSION
Drummond respectfully requests that this Court grant this motion and allow alternative
service on Francisco Ramirez Cuellar and Albert Van Bilderbeek via e-mail at the following
email addresses:

Francisco Ramirez Cuellar - franciscoramirezcuellar@gmail.com and

abogados.aso@hotmail.com

Albert Van Bilderbeek - albert14111@yahoo.com and

albert@Vanbilderbeek.com

Drummond further requests that this Court permit alternative service on Albert Van Bilderbeek
via his U.S. counsel: Terrence P. Collingsworth and/or the law firm of Campbell Guin Williams
Guy & Gidiere LLC. Finally, Drummond requests that this Court issue Summonses for both
Francisco Ramirez Cuellar and Albert Van Bilderbeek that can be served with the Complaint via
these forms of alternative service.

Respectfully submitted,
/s/ H. Thomas Wells, III
William Anthony Davis, III (ASB-5657-D65W)
H. Thomas Wells, III (ASB-4318-H62W)
Benjamin T. Presley (ASB-0136-I71P)
STARNES DAVIS FLORIE LLP
P.O. Box 59812
Birmingham, AL 35259
(205) 868-6000
fax: (205) 868-6099

/s/ Sara E. Kropf

Sara E. Kropf
LAW OFFICE OF SARA KROPF PLLC
1001 G St. NW, Suite 800
Washington, DC 20001
(202) 627-6900

Attorneys for Drummond Company, Inc. and Drummond Ltd.

16

Case 2:15-cv-00506-RDP Document 99 Filed 09/01/16 Page 22 of 22

CERTIFICATE OF SERVICE
I hereby certify that on September 1, 2016, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system which will send electronic notice to the following
counsel of record.
Robert K. Spotswood
Michael T. Sansbury
William T. Paulk
SPOTSWOOD SANSOM & SANSBURY LLC
1819 5th Avenue N., Suite 1050
Birmingham, Alabama 35203
Telephone: (205) 986-3620
rks@spotswoodllc.com
msansbury@spotswoodllc.com
wpaulk@spotswoodllc.com
W. Percy Badham
Brannon J. Buck
Brett A. Ialacci
BADHAM & BUCK, LLC
2001 Park Place North, Suite 500
Birmingham, Alabama 35203
Telephone: (205) 521-0036
Fax: (205) 521-0037
pbadham@badhambuck.com
bbuck@badhambuck.com
bialacci@badhambuck.com
Greg W. Foster
Foster Law Firm, P.C.
300 Vestavia Parkway, Suite 2300
Birmingham, AL 35216
Phone: (205) 795-2073
Fax: (888) 519-3341
gregfosterlawfirm@gmail.com

/s/ H. Thomas Wells, III

H. Thomas Wells, III (ASB-4318-H62W)

17