Tag Archives | Australia

Case of the Day: Shoham v. Islamic Republic of Iran

By on March 26, 2013 in FSIA, Hague Service Convention, Service by mail, Uncategorized

The case of the day is Shoham v. Islamic Republic of Iran (D.D.C. 2013). Batsheva Shoham alleged that while she was driving in the West Bank with her infant son, she was ambushed by members of the Al-Aqsa Martyrs Brigade, a terrorist group. One of the terrorists threw a stone that struck her son, killing him. In 2011, Mrs. Shoham and victims of similar attacks sued Iran, Syria, and others in the District of Columbia. Judge Collyer severed Mrs. Shoham’s claims from the action and granted her leave to refile with a new caption, noting that the summonses would have to be reissued and that the amended complaint would have to be served.

Mrs. Shoham then filed a new action, with a complaint identical to the complaint in the prior action, but with a new caption. The remaining plaintiffs in the first case managed to serve Iran and its instrumentalities with process via diplomatic channels. After the court ordered Mrs. Shoham to show cause why her new action should not be dismissed for want of prosecution (as she had filed no return of service after six months), Mrs. Shoham moved for entry of default judgment on the theory that despite Judge Collyer’s order, service of the original complaint in the first action sufficed. She cited precedents for the proposition that service of an amended complaint under the FSIA after a default by the foreign state is necesssary only if the amendments are substantial.

Judge Lamberth distinguished these cases on the grounds that they involved the service of an amended complaint in a single action, not, as was the case here, service of a complaint in an entirely new civil action. It hardly matters, from the jurisdictional point of view, whether the complaint in the second action was similar or even identical to the complaint in the first. However, the judge did give her additional time to effect service, and he blasted the government for the high fees it charges to effect service via diplomatic channels under the FSIA.

Mrs. Shoham also sought leave to serve Bank Melli, Bank Saderat, and Iran Air in Austrialia, Canada, France, Italy, Hong Kong, the Netherlands, Sweden, and the UK, by registered mail, return receipt requested. The judge granted the request. All three defendants are agencies or instrumentalities of Iran for purposes of the FSIA. Therefore, service was governed by 28 U.S.C. § 1608(b). Mrs. Shhoam had been unable to make service by registered mail at the defendants’ headquarters in Iran, and therefore her request was proper under § 1608(b)(3)(C), which permits service by delivery of the documents “as directed by order of the court consistent with the law of the place where service is to be made” when other means of service have failed. All of the countries named are parties to the Hague Service Convention, and none has objected to service by postal channels under Article 10(a). 1 The judge held, correctly, that service by mail under Article 10(a) despite the minority view to the contrary.

Note that § 1608(b)(3)(C) asks whether the service is “consistent with the law of the place where service is to be made.” Is there an issue about whether service by postal channels is consistent with the law of the state where service is to be made, particularly if in a particular state the Convention is not self-executing? The decision does not raise this issue, and I simply pose it as a question.

Notes:

  1. Australia requires that such service be by registered mail, return receipt requested, and I refer readers to one of my many discussions with Antonin Pribetić on the issue of service by mail in Canada. ↩
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Case of the Day: Dion v. Rieser

By on October 29, 2012 in Recognition and Enforcement

The case of the day is Dion v. Rieser (N.M. Ct. App. 2012). Richard Rieser died intestate in 2007. He was unmarried and had no children, and he owned property both in New Mexico and in Australia. He was survived by his partner, Margaret Anne Dion; the two had lived together at various times in Australia, New Mexico, and Indonesia.

Dion had sought letters of administration for Rieser’s estate in New South Wales. In Dion v. Rieser [2010] NSWSC 50, the Australian court found that Dion was Rieser’s de facto spouse at his death. After the Australian judgment, Dion asked the New Mexico district court, where a probate petition was pending, to be appointed administratrix of the estate in light of her status as de facto spouse. The district court held that while New Mexico recognizes so-called common law marriages if they were valid where they arose and were consummated, 1 but that the status of de facto spouses under Australian law is not equivalent to the status of common law spouses under New Mexico law, and thus the Australian judgment does not compel the New Mexico courts to treat Dion as Rieser’s wife for purposes of deciding whether she was entitled to administer his estate.

The court of appeals agreed. The decision ultimately didn’t come down to whether the Australian judgment was entitled to comity. Instead, the issue was whether, assuming the Australian judgment were entitled to comity, its findings of fact and conclusions of law had any implications in the New Mexico proceeding. So the case is not, strictly speaking, within Letters Blogatory’s scope of coverage, but it’s interesting anyway.

Notes:

  1. A common law marriage is a marriage entered into without a license from the state, and typically they require that the couple not just make a marriage contract but that they hold themselves out to the world as husband and wife. The name “common law marriage” is actually a fairly good one, since at common law spouses could marry by making a present contract to marry, or by making a contract to marry in the future and then consummating the marriage. Only later, by statute, was the requirement imposed of a marriage license from the state, or the presence of an officiant. ↩
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Case of the Day: DFSB Kollective v. Bourne

By on July 5, 2012 in Hague Service Convention, Service by mail

The case of the day is DFSB Kollective Co. v. Bourne (N.D. Cal. 2012). Kollective is a Korean company that had exclusive rights to some Korean pop music recordings in the United States. Yousuf Bourne, the defendant, resided in Australia. He operated several websites and had accounts with several social media sites, and Kollective alleged that he was using his online presence to disseminate infringing copies of its songs.

Kollective filed a return of service indicating that it had had a private process server serve the summons and complaint by leaving copies at Bourne’s residence with an adult resident, and by mail. Kollective moved for a default judgment when Bourne failed to answer.

Although the judge didn’t address the issue, the service by mail was probably ineffective. Australia is a party to the Hague Service Convention and has not objected outright to service by postal channels. However, Australia’s Article 10 declaration requires that service through the postal channel be by registered mail, and the return of service gives no indication that Kollective used registered mail. Moreover, service by mail on an individual abroad requires that the clerk address and send the documents, see FRCP 4(f)(2)(C)(ii), which according to the return of service did not happen here.

Service by leaving the documents at the defendant’s residence is proper if and only if it is permitted under the law of Australia. Why is this so? Under FRCP 4(f)(2), the question is whether the Hague Service Convention “allows but does not specify” this method of service. The Convention does not expressly authorize this method of service, but Article 19 permits the use of methods that Australian law permits in cases of “documents coming from abroad, for service in its territory.” 1 Now, I can’t really opine on matters of Australian law let alone Western Australian law (Bourne’s residence was in Perth), but a quick online search turned up Order 9(1)(1) of the Rules of the Supreme Court 1971, which provides:

Subject to the provisions of any Act and these rules, a writ must be served personally on each defendant by the plaintiff or his agent.

The judge cited a case, Hadjdjelloul v. Global Machinery, 2011 WL 4860025, at *3 n.6 (D. Minn. Oct. 7, 2011), for the proposition that the method of service Kollective used was permissible, but the Hadjdjelloul case only says that service “carried out by a private-process server” is permissible; it does not address the means of delivery that are permissible under Australian law.

The >Australian Attorney General’s website 2 suggests that Australia gives wide latitude in service of foreign process:

Australia does not object to the use of private process servers for the service of overseas legal documents.

Australian courts require no further measures with regards to the service of initiating process documents of a foreign court. Service which complies with the requirements of the foreign court will be accepted by the local court.

All of this seems a bit tangled. Comments from Australian lawyers are welcome, but I am not confident that service by leaving the summons at the defendant’s home, without personal delivery to him, is permitted under the law of Western Australia, and thus I am not confident that it is permitted by the Convention.

Despite the iffy ruling on service of process, the magistrate judge recommended denial of Kollective’s motion for a default judgment on the grounds that the court lacked personal jurisdiction over Bourne.

Notes:

  1. There is an issue about whether Article 19 refers to methods of service expressly prescribed by foreign law, or rather it refers to methods of service not expressly forbidden by foreign law. ↩
  2. I’ve removed this link, which no longer seems to work. ↩
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