The case of the day is Tansey v. Cochlear Ltd. (E.D.N.Y. 2014). The plaintiff, Jeanini Tansey, had a cochlear implant manufactured by Cochlear Ltd., a New South Wales company, to treat her deafness. She alleged that Cochlear had failed to comply with FDA requirements and that the device cracked and stopped working. The device had to be removed, which led, she claimed, to major nerve damage that led to her total disability. Tansey served requests for the production of documents on Cochlear, which moved for a protective order requiring first resort to the Hague Evidence Convention. Continue reading →
The name of today’s case of the day, Flo Rida v. Mothership Music Pty Ltd.  NSWCA 268, is perfect. Flo Rida is an American rapper. He had a contract to perform at the Fat As Butter music festival in Newcastle, New South Wales, in 2011. He didn’t perform, and the festival’s organizer, Mothership Music, sued him in the District Court for breach of contract. The judge authorized service of process via Facebook. Ultimately, a default judgment entered, and Flo Rida appealed.
The Court of Appeal allowed the appeal and set aside the judgment. The grounds of the decision were a little bit anticlimactic from a Letters Blogatory perspective. The District Court is a court of inferior jurisdiction, and Justice MacFarlan held that the District Court lacked jurisdiction over a person who was served by substituted service after having left Australia. So the case was really about the special limitations on the jurisdiction of the District Court and nothing broader. But suppose the case had been brought in a court without such limitations on its jurisdiction. Then we might expect to see a decision about whether service of process by Facebook is permissible under the Hague Service Convention. So here’s hoping that Mothership Music tries again.
The case of the day is Solid Systems CAD Services v. Total Risc Technology Pty Ltd. (S.D. Tex. 2013). Total Risc Technology Global Ltd. was a Chinese company with offices in the Netherlands, Singapore, Hong Kong, the Philippines, Malaysia, and India. Its chief executive officer, Domenic Rommanelli, was an Australian national apparently living in Australia. Paul Garufi, perhaps an Australian but in any case present in Australia, was its CFO. Solid State served the summons and complaint on Total Risc Global via the Australian central authority; according to the Article 6 certificate, the documents were served on Total Risc Global by personal delivery to Garufi. Total Risc Global moved to dismiss for insufficient service of process, arguing that Solid Systems was required to serve process via the Chinese central authority. I assume that service on Garufi was sufficient, under Australian law, to constitute service on Total Risc Global.
The judge properly denied the motion. I like this decision, because it serves to highlight a point we’ve seen before: the Hague Service Convention is not about when it’s permissible to sue a foreign national; it’s about how it’s permissible to serve process in a foreign state’s territory. It’s important not to get concepts of immunity mixed up with concepts of a state’s right to control what happens in its territory. A foreign state can’t forbid me to sue one of its nationals, or to serve process on one of its nationals, unless the defendant has immunity (sovereign immunity, diplomatic immunity, head of state immunity, or whatever). But the foreign state can prevent me from serving process on a person in its territory—whether the person is one of its nationals or not.