Tag Archives | Hague Service Convention

Case of the Day: Devi v. Rajapaksa

By Ted Folkman on February 8, 2012 in Hague Service Convention

Pres. Mahinda Rajapaksa of Sri Lanka

The case of the day is Devi v. Rajapaksa (S.D.N.Y. 2012). The case arises out of the long and bloody civil war between the Sinhalese majority and the Tamil minority in Sri Lanka. The plaintiff, Vathsala Devi, is the widow of Thurairajasingham, also known as Colonel Ramesh. The defendant, Mahinda Rajapaksa, is the President of Sri Lanka. According to the complaint, after Devi and her children left Sri Lanka in 2008, she saw a video showing her husband in the custody of the Sri Lankan army, being interrogated. Although Sri Lankan army officials have claimed that the video is a fake, Devi claimed it was real and that it showed that her husband had surrendered and was in Sri Lankan custody at the end of the war. Devi alleges that the video “confirm[ed] that [her] husband was detained by the Sri Lankan military forces and was later killed by the armed forces while a prisoner of the government in breach of customary international law.” I question the plausibility of this allegation, since it seems that when the video ended, Colonel Ramesh was alive, and Devi does not seem to allege that the video shows him being tortured or mistreated (though she does allege that end of the video the interrogators were “threatening to attack” the Colonel with a baton, which in itself is a kind of mistreatment, I think).

In any event, Devi sued Rajapaksa in New York under the Alien Tort Statute, 28 U.S.C. § 1350, which provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

(N.B. I am currently working on an ATS case, so I won’t be offering any views or comments about the meaning of the statute here).

Devi sought to serve the summons and complaint on Rajapaksa twice. First, upon learning that he would attend a meeting at a Buddhist temple in Queens in September 2011, Devi made unspecified “arrangements to effect service at that time”, but Rajapaksa did not show up at the meeting. Second, upon learning that Rajapaksa was to attend a meeting in Australia in October 2011, Devi consulted with lawyers there about serving process but was unable to serve the documents due to the shortness of time. Devi did not seek to serve the summons and complaint under the Hague Service Convention’s central authority mechanism, claiming that resort to the Convention would be futile: in a similar case in the District of Columbia, the Sri Lankan Ministry of Justice (the country’s central authority) refused to serve documents on Rajapaksa, citing Article 13 of the Convention.

Devi moved for leave to serve process by publication. The court denied the motion on the grounds that Devi ought at least to try to serve Rajapaksa via the Convention first:

[W]e find it prudent to require that a formal effort to serve defendant be made in the first instance, thereby ensuring that all interested parties are provided notice of the suit. Thus, before we will consider alternative forms of service, plaintiff must utilize the provisions of the Hague Convention.

I believe the basic outcome of the case is correct, but I fear that the judge’s reasoning will lead Devi astray. It seems to me that because the claim against Rajapaksa is really a claim of command responsibility for his military subordinates’ violations of customary international law, Rajapaksa is being sued for quintessentially governmental functions, and thus is is arguably immune from suit under the Foreign Sovereign Immunities Act. I say “arguably” because the statute has various exceptions, including an exception for acts of torture under color of law. I do not want to address the merits of the immunity issue. Rather, I want to suggest that under cases such as Nikbin v. Islamic Rep. of Iran, 471 F.Supp.2d 53, 65-66 (D.D.C. 2007), it seems to me that Devi is probably required to serve process using the methods prescribed by the FSIA for service on the state itself. After attempting service under the Convention, the statute—if it applies—will require Devi to attempt service by mail, and then to make service through the diplomatic channel. These methods of service must be carried out in the order prescribed by the statute. Service by publication is not a permissible method of service under the FSIA, if this is indeed an FSIA case.

Photo credit: World Economic Forum

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Tags: FSIA, Hague Service Convention, Sri Lanka

Case of the Day: RPost Holdings, Inc. v. Kagan

By Ted Folkman on February 7, 2012 in Hague Service Convention, Service by email

USS Asheville The case of the day, RPost Holdings, Inc. v. Kagan (E.D. Tex. 2012), is yet another example of why you shouldn’t let your lawyer communicate with the plaintiff if you intend to duck service. RPost sued Dmitry Kagan for trademark and patent infringement on account of pointofmail.com, a website it alleged Kagan owned. RPost attempted to make service on Kagan in Israel via the central authority mechanism under the Hague Service Convention, but the central authority responded that Kagan had moved to an unknown address. RPost managed to make email contact with Kagan: it received a response to its email from Jonathan Agmon, who stated that he represented Kagan “with regard to responding to your letter.” Agmon refused to accept the summons and complaint on Kagan’s behalf or to provide a valid address where Kagan could be served under the Convention. RPost then asked for leave to serve the complaint by email on Kagan and Agmon.

The court agreed. First, the Convention does not apply, because Kagan’s address is unknown, and RPost acted with reasonable diligence. Second, the service requested complied with due process, because it was clear, from the fact that Agmon had responded to the email to Kagan, that the email had in fact reached Kagan. In a neat twist, RPost said it had used its own “registered E-mail technology” to verify that Kagan had received the message.

The moral of the story: if you intend to duck service, run silent and run deep. Once your lawyer surfaces, the court will likely permit service on the lawyer, particularly if he is intransigent and refuses to provide an address for you or to accept service on your behalf.

Photo Credit: United States Navy

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Tags: Email, Hague Service Convention, Israel

Case of the Day: In re Marriage of Shults

By Ted Folkman on February 3, 2012 in Hague Service Convention

Geirangerfjord The case of the day, In re Marriage of Shults (Minn. Ct. App. 2012), is the rare family law case (aside from international child abduction cases) that raises judicial assistance issues. Mr. and Mrs. Shults were married in 1984. In 2006, the family moved from Minnesota to Norway. In 2009, the wife and the couple’s minor child (two other children were grown) returned to Minnesota, and the couple decided to divorce. They were legally separated in Norway—a prerequisite to divorce there—and then the husband applied for a divorce license. No hearing was held, and there was a dispute about the wife was ever served with the application for the divorce license. In Norway, the sole purpose of the divorce license proceeding was dissolution of the marriage, not adjudication of child custody, division of property, or alimony.

In 2010, the wife sued for divorce in Minnesota. She submitted an affidavit of service stating that the summons and petition had been placed in her husband’s mailbox in Norway, according to Norwegian law. Shortly thereafter, the Norwegian court granted the husband’s request for a divorce license, and the husband notified the Minnesota court of that fact. The wife then submitted a second affidavit of service stating that the process server personally handed the documents to the husband in Norway.

The Ramsey County District Court held that under Minnesota law, the wife was required to serve the documents personally on the husband, so the first attempt at service in his mailbox was ineffective. Under Minnesota law, then, the wife’s divorce case was not commenced until the date of the second service, after the date of the Norwegian divorce decree. Therefore, the court held that the parties were already divorced, and it dismissed the wife’s petition:

Minnesota law, not the Hague Convention, controls commencement of a dissolution proceeding. Personal service—that is, service in hand delivered to the person of the Respondent (not substituted service, not abode service, not service by mail or service by publication)—is necessary wherever in the world that person may be found, unless that person is in a war zone, failed state, or in some other manner beyond personal service. In such case, upon proper application the Court approves service by alternate means.

The Court of Appeals reversed and remanded. It recognized that the statute required personal service, but it noted that the statute did not define personal service, and that under Rule 4.04(c) of the Minnesota Rules of Civil Procedure, personal service may be made “by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” The Convention applies in this case, and so the court held that the lower court should have determined whether the mailbox service comported with the requirements of the Convention. If it did, then the Minnesota case would have been commenced before the Norwegian case went to judgment, and that simple difference in timing would have had jurisdictional implications.

With the caveat that I can’t comment on the correctness of the court’s holding that “personal service” can include service by leaving the document at the defendant’s place of abode, this decision seems entirely correct.

Photo credit: Frédéric de Goldschmidt

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Tags: Hague Service Convention, Norway

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