Tag Archives: Israel

Case of the Day: Two Moms And A Toy v. International Playthings

The case of the day is Two Moms And A Toy v. International Playthings (D. Colo. 2012). The claim was for infringement of US Patent 6,782,567, which describes a “fountain water toy utilizing a battery-powered pump.” One of the defendants was Golos Weisman Design, Ltd., an Israeli partnership. According to the return of service, a private process server personally served the documents on one of the principals of Golos Weisman, Ronit Golos-Frosting (who refused to acknowledge receipt) and by leaving them at the dwelling of two other principals, Zafrira Weisman-Zinger and Israel Zanger. Golos Weisman failed to answer, and the clerk entered its default. Another party, International Playthings, LLC, moved to vacate the entry of default on the grounds that Two Moms And A Toy had not properly served the summons on Golos Weisman.

The judge agreed and vacated the default. He agreed with the plaintiff that because Golos Weisman’s address was unknown, the Hague Service Convention did not apply, but he reasoned that the plaintiff was required to seek leave to serve process using “other means not prohibited by international agreement, as the court orders,” under FRCP 4(f)(3). It was not disputed that the plaintiff had not sought leave under FRCP 4(f)(3). The judge pointed out that Israel had made a declaration concerning service under Article 10(b) and (c) of the Convention, which relate to service through the “judicial officers, officials or other competent persons of the State of destination”:

The State of Israel, in its quality as State of destination, will, in what concerns Article 10, paragraphs b) and c), of the Convention, effect the service of judicial documents only through the Directorate of Courts, and only where an application for such service emanates from a judicial authority or from the diplomatic or consular representation of a Contracting State.

I think the outcome of the decision is correct, though I think the judge was probably wrong to say that the plaintiff had to proceed under FRCP 4(f)(3). It seems to me the plaintiff could have proceeded under FRCP 4(f)(2)(C)(ii), which provides for service by “any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” Israel has not objected to Article 10(a) of the Convention, which is the provision permitting service by mail through postal channels. It seems that even though this is a patent case, and an appeal would therefore lie to the Federal Circuit rather than the Tenth Circuit, 1See Jordan v. Nissan Motor Co., 34 F.3d 1079 (Fed. Cir. 1994), the Tenth Circuit has not decided the question. So the plaintiff may have had good reason not to choose service by mail. In this case, probably service via the central authority would have been the best option. Or else the plaintiff could have sought leave to make service by alternate means, though Golub Weisman has been clever—by not having its own lawyer make an appearance in the case, it has not given the plaintiff an easy target, e.g., an order under FRCP 4(f)(3) permitting service on its own lawyer.

Interestingly, the plaintiff filed a second return of service very shortly after the judge’s order, purporting to effect service on Golub Weisman by service on a company in the US that is purportedly its agent. Why go through all this trouble? Even if the plaintiff is right, it seems to me that service via the central authority would have been effected by the time all the motion practice is finished.

Notes:

    Case of the Day: Zeevi Holdings v. Republic of Bulgaria

    We return today to Zeevi Holdings Ltd. v. Republic of Bulgaria, which we first considered on April 15, 2011, when the case was still in the District Court. Here was my summary of the facts:

    Zeevi, an Israeli firm, had a contract with an agency of the Bulgarian government (but not with Bulgaria itself) to purchase shares in Bulgaria’s national airline. The contract had an arbitration clause calling for arbitration of any disputes in Paris under the UNCITRAL Rules. The agreement was to be “governed by and construed in accordance with” Bulgarian law, and “[t]he execution of an award against the Seller may be conducted only in Bulgaria in accordance with the provisions of Bulgarian law.” Zeevi commenced an arbitration against Bulgaria, asserting various misrepresentations, and the tribunal entered a $10 million award in Zeevi’s favor. Bulgaria refused to pay. Zeevi sought recognition and enforcement of the award in the Jerusalem district court, which ruled in its favor and held, as a matter of Israeli law, that the contract did not limit confirmation proceedings to Bulgaria. (As the New York court noted, it was unclear why the Israeli court decided the issue under Israeli law, when the contract itself called for application of Bulgarian law. For this reason, the New York court rejected out of hand the argument that the Israeli decision was preclusive). Zeevi then sought recognition and enforcement in the New York Supreme Court, and Bulgaria removed the case to the federal court.

    As we saw, the US District Court for the Southern District of New York held that the forum selection clause allowed confirmation proceedings only in Bulgaria. Zeevi appealed to the Second Circuit. In today’s decision, the court summarily affirmed. The decision made three basic points.

    First, a motion to dismiss on forum selection clause grounds is procedural not substantive, and thus permissible under the New York Convention even though not explicitly mentioned in the Convention.

    Second, the petition for confirmation was within the scope of the forum selection clause. The clause read:

    The execution of an award against the Seller may be conducted only in Bulgaria in accordance with the provisions of Bulgarian law.

    On the one hand, “confirmation” seems distinct from “execution,” just as “recognition” is distinct from “enforcement.” But on the other hand, everyone agreed that under Bulgarian law, an award cannot be “executed upon” in a Bulgarian court unless a Bulgarian court has first confirmed it. Thus the necessary implication of the parties’ agreement, in the court’s view, was that the parties intended for confirmation proceedings should also occur in Bulgaria.

    Third, the court rejected the notion that the judge should have deferred, as a matter of comity, to the Israeli judge’s decision that the forum selection clause did not require confirmation proceedings to be brought in Bulgaria. This is the most interesting, and also the most contestable, aspect of the decision. The court’s review was de novo. The court began by noting that issue preclusion as between a US court and a foreign court is a matter of comity, i.e., not mandatory. But even in the domestic context, issue preclusion arises only when the issues considered by the two courts are identical. But “issues are not identical when the legal standards governing their resolution are significantly different.” According to the court, the Israeli court relied on a provision of Israeli law that forum selection clauses are to be construed narrowly, but the parties in the US agreed that Bulgarian law applied to the interpretation of the clause and that there was no similar rule of construction in Bulgarian law.

    I’m not completely sure of this, but it appears to me that Zeevi did not seek recognition of the Israeli judgment, as perhaps it might have done. I wonder whether the court’s point about comity would have applied if it had.

    Case of the Day: Schiff v. Hurwitz

    The case of the day is Schiff v. Hurwitz (W.D. Pa. 2012). Schiff was a patient of Dr. Hurwitz, who performed the “BodyTite Procedure” on Schiff. Personally, I would not recommend any medical procedure with a purposely misspelled word in the name, but that’s just me. Schiff used a medical device manufactured by Invasix in the procedure. The decision doesn’t really spell out the facts relevant to the service of process issue, but it appears that Schiff had tried to serve process on the defendants in Canada and Israel, both parties to the Hague Service Convention, by mail. The decision is somewhat oddly reasoned, but the bottom line is that the judge joined the great majority of rightly decided cases holding that Article 10 of the Convention does indeed authorize service of process by mail.