The case of the day is Acushnet Co. v. Thiede (D. Ariz. 2013). Acushnet sought leave to serve process on Dualwin Sporting Goods Co. via email in China. The judge granted the motion. Much of the short decision is taken up with citations to cases approving service by email, but lest anyone get the wrong idea, the true basis for the decision was the fact that Acushnet’s investigation had revealed that Dualwin had “falsified its physical address data.” When a defendant’s address is unknown, the Hague Service Convention simply has no application (see Art. 1). So the case is rightly decided, but as with all cases approving service by email in Hague Service Convention countries that have objected to service by postal channels, use caution before citing!
The case of the day is Loeb ex rel. Universal Travel Group v. First Judicial District Court (Nev. 2013). Loeb brought a shareholder derivative action on behalf of Universal Travel Group against its officers and director, Jiangping Jiang, Jiang Xie, Hujie Gao, Jiduan Yuan, Lizong Wang, Wenbin An, Lawrence Lee, Yizhao Zhang, and Liquan Wang, all of whom reside in China. Universal refused to disclose their addresses to Loeb’s lawyers, and Loeb sought leave to serve by publication. Under Nevada law (in particular Nev. R. Civ. P. 4(e)(1)(i)), when a defendant’s address is known, service by publication is permissible in some cases, but the plaintiff must also mail the documents to the defendant. After Loeb filed his motion, Universal did disclose the addresses. The District Court denied the motion, and Loeb petitioned the Nevada Supreme Court for a writ of mandamus.
The court denied the petition. The decision is clearly correct, because under the law of the forum the service was not complete until the plaintiff both published the notice and mailed the documents to the defendant. I would have addressed the issue a little differently than the Nevada court did. It seems to me that the real issue is that China objects to service by postal channels. In a country that had not made such an objection, it would seems that service by publication would be entirely consistent with the Convention. The court did not address service by postal channels under Article 10(a) at all, which is curious.
The case of the day is Lexmark International, Inc. v. Ink Technologies Printer Supplies, LLC (S.D. Ohio 2013). The plaintiff sought leave to serve defendants in China and Germany via email. The judge noted that both China and Germany are parties to the Hague Service Convention. The judge granted the motion. He did not analyze the Convention in any detail, beyond noting that “Email service has been approved even where, as here, the country objects to Article 10 of the Hague Convention.” And for that proposition, he cited the two worst cases ever, Gurung v. Malhotra and FTC v. PCCare247. I mean, really!
It seems to me that one problem with a decision like this—beyond being flat-out wrong—is that it is decided on an ex parte basis, without any opposition. That’s not to excuse the sloppiness of judges who don’t stop to ask themselves what provision of the Convention authorizes the method of service they are so liberally permitting. But it’s understandable that a judge would follow a case such as Gurung when no one is there to explain why Gurung was obviously wrongly decided.
I want to end all of my posts from now on as follows: “Furthermore, it is my opinion that Gurung v. Malhotra must be repudiated.”