Case Briefing

The court noted that the Ninth Circuit had previously approved a district court's choice of e-mail as the means of effecting service on a foreign company in Rio Properties Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002), but that that case did not stand for the proposition that e-mail service should always be permitted by a district court. In Rio the Ninth Circuit concluded that email service was appropriate because, after diligent investigation by the plaintiffs, it appeared that email was the only method of contacting the defendant and because the court concluded that email was reasonably calculated to apprise the defendant of the pending suit. Notably, the plaintiff in Rio first attempted to serve the defendant in the United States via the address used to register the defendant's domain and through the defendant's lawyer. When these methods failed, the plaintiff made a diligent search for the defendant in the defendant's native country. It was only after all these efforts were unsuccessful that the plaintiff asked the district court to allow e-mail service.

In this case, the court was unconvinced that e-mail was reasonably calculated to apprise defendants of the pending action or that it is the only means available to Pfizer. The company was not clear about where it intended to send its e-mail service. In its motion papers, Pfizer listed six possible e-mail addresses, but when entered in the courthouse computer, none of the proffered domains called up a Web site. In addition, Pfizer did not appear to have done any investigation into the possibility of other means of serving the defendants. The court therefore held that Pfizer had not exhausted its other options in serving the defendants.

U.S. Sues Metabolife Over Alleged False Statements to FDA

U.S. Attorney Carol C. Lam announced on July 22 that a Grand Jury sitting in the Southern District of California returned an eight-count indictment against San Diego-based corporation Metabolife International Inc., and its founder, Michael J. Ellis. The indictment charges both defendants with six counts of making false, fictitious and fraudulent representations to the FDA, and two counts of corruptly endeavoring to influence, obstruct and impede proceedings concerning the regulation of dietary supplements containing ephedra being conducted by the FDA. Until the FDA banned the sale of ephedra in the United States in 2003, Metabolife was one of the largest retailers of dietary supplements in the country, based largely on sales of its ephedra-based product, Metabolife 356.

According to Assistant U.S. Attorneys Phillip L.B. Halpern and Kyle W. Hoffman, who are prosecuting the case, Metabolife and Ellis are charged with falsely representing a number of different material facts to the FDA in letters dated April 17, 1998 and Feb. 9, 1999. These representations included false statements by the defendants that Metabolife had never received notice from any consumer that they had experienced a serious adverse health event because of the ingestion of Metabolife 356 and that the company had a “claims-free history.”

Service By E-mail Inadequate

Several pharmaceutical manufacturers were denied their request for leave to serve complaints on two defendants via email because plaintiffs were unable to show that they had made adequate efforts to use more traditional means and their method of service wasn't likely to reach the intended defendants to apprise them of the pending action. Pfizer Inc. v. Domains by Proxy, Civ. Act. No. 3:04cv741 (SRU), 2004 U.S. Dist. LEXIS 13030 (D.D.C. 7/13/04).

Pfizer Inc., Pfizer Ireland Pharmaceuticals and Warner-Lambert Company LLC (collectively Pfizer) sued people and business entities alleged to be behind the genericlipitors.com and econopetcare.com internet sites. Pfizer had filed a complaint but had not yet served two of the defendants — John Doe and Econo Services (India) Pvt. Ltd. Pfizer sought the court's permission to serve these defendants by email pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure. Rule 4(f)(3) allows for service of process to be made on an individual in a foreign country “by means not prohibited by international agreement as may be directed by the court.” These means must comport with constitutional notions of due process by being reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections.

The court noted that the Ninth Circuit had previously approved a district court's choice of e-mail as the means of effecting service on a foreign company in Rio Properties Inc. v. Rio International Interlink , 284 F.3d 1007 (9th Cir. 2002), but that that case did not stand for the proposition that e-mail service should always be permitted by a district court. In Rio the Ninth Circuit concluded that email service was appropriate because, after diligent investigation by the plaintiffs, it appeared that email was the only method of contacting the defendant and because the court concluded that email was reasonably calculated to apprise the defendant of the pending suit. Notably, the plaintiff in Rio first attempted to serve the defendant in the United States via the address used to register the defendant's domain and through the defendant's lawyer. When these methods failed, the plaintiff made a diligent search for the defendant in the defendant's native country. It was only after all these efforts were unsuccessful that the plaintiff asked the district court to allow e-mail service.

In this case, the court was unconvinced that e-mail was reasonably calculated to apprise defendants of the pending action or that it is the only means available to Pfizer. The company was not clear about where it intended to send its e-mail service. In its motion papers, Pfizer listed six possible e-mail addresses, but when entered in the courthouse computer, none of the proffered domains called up a Web site. In addition, Pfizer did not appear to have done any investigation into the possibility of other means of serving the defendants. The court therefore held that Pfizer had not exhausted its other options in serving the defendants.

U.S. Sues Metabolife Over Alleged False Statements to FDA

U.S. Attorney Carol C. Lam announced on July 22 that a Grand Jury sitting in the Southern District of California returned an eight-count indictment against San Diego-based corporation Metabolife International Inc., and its founder, Michael J. Ellis. The indictment charges both defendants with six counts of making false, fictitious and fraudulent representations to the FDA, and two counts of corruptly endeavoring to influence, obstruct and impede proceedings concerning the regulation of dietary supplements containing ephedra being conducted by the FDA. Until the FDA banned the sale of ephedra in the United States in 2003, Metabolife was one of the largest retailers of dietary supplements in the country, based largely on sales of its ephedra-based product, Metabolife 356.

According to Assistant U.S. Attorneys Phillip L.B. Halpern and Kyle W. Hoffman, who are prosecuting the case, Metabolife and Ellis are charged with falsely representing a number of different material facts to the FDA in letters dated April 17, 1998 and Feb. 9, 1999. These representations included false statements by the defendants that Metabolife had never received notice from any consumer that they had experienced a serious adverse health event because of the ingestion of Metabolife 356 and that the company had a “claims-free history.”