Court: District Court, S.D. Florida; August 18, 2015; Federal District Court
The Court granted in part Defendant Fabian Bonilla M.D.'s motion to quash service of process and dismiss the amended complaint for lack of personal jurisdiction. Plaintiffs Diane Ure and Thomas Ure, Jr. sued Dr. Bonilla and Oceania Cruises, alleging negligence related to Mrs. Ure's treatment aboard an Oceania ship. After her condition worsened, she was transferred to Bay View Hospital in Barbados, where she allegedly received inadequate care, resulting in permanent injury.
Dr. Bonilla, a citizen of Ecuador, argued that service was improper under Federal Rule of Civil Procedure 4(f), which governs service on individuals in foreign countries. He claimed that the only valid method of service in Ecuador is through exhorts or letters rogatory, supported by an affidavit from Ecuadorian attorney Dr. Frowel Cun Ugalde. However, the Court noted that the United States is not a signatory to the Sanchez de Bustamante Code of Private International Law, and both countries are signatories to the Inter-American Convention on Letters Rogatory, which allows for alternative methods of service that are not mandatory or exclusive. The Court referenced prior rulings indicating that the provisions of the Inter-American Convention do not eliminate other valid service methods.
Plaintiffs have the option to serve Dr. Bonilla through the Inter-American Convention, but Ecuadorian law, as stated by Dr. Ugalde, does not allow service via registered or certified mail; only the exhort or letter of rogatory is permitted. No affidavits or contrary legal authority were presented by the Plaintiffs to dispute Dr. Ugalde's claims. Consequently, the Court concludes that service via Federal Express, registered, or certified mail is not valid under Ecuadorian law. The Court referenced the case of Prewitt Enterprises, where service was ineffective due to similar prohibitions in Austrian law. Additionally, Plaintiffs' attempt at substituted service under Florida Statute 48.181 failed, as they did not adequately demonstrate that the cause of action arose from Dr. Bonilla's business activities in Florida, as required by Newberry v. Rife. Therefore, service under this statute is quashed. The Court granted Dr. Bonilla's motion to quash service of process but denied as moot the motion to dismiss for lack of personal jurisdiction.
