Tag Archives | Letter Rogatory

Case of the Day: Rosales v. FitFlop USA, LLC

By on March 20, 2013 in Letter Rogatory

The case of the day is Rosales v. FitFlopUSA, LLC (S.D. Cal. 2013). Rosales, who had bought FitFlop footware, sued the company, alleging that FitFlop had represented “that its products will provide wearers with a variety of health benefits, but in reality FitFlop Footware does not provide the promised benefits and may actually cause or exacerbate the type of problems it claims to protect against.” Out of such stuff is private international law made. The case was a putative class action; the judge had not yet ruled on class certification.

Rosales applied for issuance of a letter of request to take depositions of the inventors, a researcher who conducted studies on FitFlop footware, and certain FitFlop former employees. Rosales’s proposed letter of request also sought document discovery. All of the discovery was to occur in the UK. The judge granted the application in part and denied it in part. The particulars are not that interesting. The reason I highlight the case is that Rosales was not proceeding under the Hague Evidence Convention, as she might have done. Instead, she was proceeding under the Evidence (Proceedings in Other Jurisdictions) Act 1975, a statute similar in some respects to the familiar 28 U.S.C. § 1782. This is entirely permissible under Article 27(c) of the Convention, which provides:

The provisions of the present Convention shall not prevent a Contracting State from—

* * *

permitting, by internal law or practice, methods of taking evidence other than those provided for in this Convention.

The moral of the story is that just as it often makes sense for foreign litigants to seek discovery in the US under § 1782 rather than through the central authority mechanism of the Hague Evidence Convention, it may sometimes make sense for US litigants to seek discovery abroad under a similar statute, where one is available.

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Case of the Day: Orsi v. Falah

By on October 8, 2012 in Hague Service Convention

Christopher Columbus Lands in America

Letters Blogatory wishes its readers a
happy Columbus Day!

The case of the day is Orsi v. Falah (D. Mass. 2012). As the judge summarized the claims, Orsi alleged that in 2003, he “encountered Al-Nahyan in the lounge of La Reserve hotel in Geneva, Switzerland.” Orsi alleged he “refused certain social invitations and sexual advances” from Al-Nahayan, and that Al-Nayan then “assaulted Orsi, whipped him with his belt, and called him a ‘Stupid American’”. Orsi claimed he was “restrained for several hours at the hotel” and that he later “received several threats from Al-Nahyan’s ‘agents’ in Geneva.” Al-Nahyan was indicted in Geneva on charges of assault and battery and deliberate infliction of bodily harm with a dangerous instrument, and apparently he was convicted, though his conviction was later overturned.

Orsi sued Al-Nahyan in Massachusetts for defamation and intentional infliction of emotional distress. The defamation claim rested on the allegation that “during and since the encounter, Al-Nahyan and his affiliates made false statements implying that Orsi is homophobic and violent.”

Al-Nahyan was the brother of the President of Abu Dhabi. The decision does not say where Al-Nahyan resides, though the complaint alleges, oddly, that Al-Nahyan “is, for purposes of this suit and the directives of Swiss law, a resident of Geneva, Switzerland.”

The procedural course of the case was highly unusual. Orsi sought and received a routine extension of time to effect service of process. 1 Orsi then attempted to make service in three ways, all clearly insufficient: (1) he attempted to serve process on Al-Nahyan’s Swiss lawyer in a related Swiss civil litigation, without first seeking leave of court under FRCP 4(f)(3) and apparently without attempting to comply with the Hague Service Convention; (2) he attempted to serve process on the “self-proclaimed attorney” for Abu Dhabi’s royal family, of which Al-Nahyan was a member, again without seeking leave of court; and (3) he sent the summons and complaint by mail to Al-Nahyan’s business office in Abu Dhabi, apparently without seeking to comply with FRCP 4(f)(2)(C)(ii), which requires the clerk to send the documents. 2 Yikes!

Orsi then moved for leave to make service by alternate means under FRCP 4(f)(3). Orsi’s motion sought what he should have sought in the first place, namely, leave to make service by mail on Al-Nahyan’s lawyers in Switzerland and Abu Dhabi and on the “office director” at Al-Nahyan’s business address in Abu Dhabi. 3

The court denied the motion. The judge recognized that there was no requirement of exhausting other options before seeking to make service under FRCP 4(f)(3), but but he held that Orsi should have done more to serve process in a way that did not offend UAE law, which, accourding to the judge, required “service by a court bailiff or private company appointed by the UAE Ministry of Justice.” Orsi had claimed that no process server in Abu Dhabi would agree to serve process on a member of the royal family, but the court found that to be pure conjecture, as Orsi had not shown that he had tried to find a process server, nor had he sought to effect service via a letter rogatory.

I think the decision’s reasoning is problematic. The judge found that service on Orsi’s Swiss lawyer would satisfy due process, and it’s not clear how service in Swiss territory would raise concerns under UAE law. On the other hand, service in Switzerland would raise its own complications (e.g., Swiss law forbids service by mail from the United States), which the judge did not discuss.

But while the judge’s reasoning was somewhat suspect, the basic point—that Orsi should have tried a letter rogatory or some other method of service “more respectful of the foreign jurisdiction” first—is most probably within the judge’s discretion.

There is another aspect of the decision worth noting. The judge held that the court lacked personal jurisdiction over Al-Nahyan. This is odd, because lack of personal jurisdiction is a waivable affirmative defense, and Al-Nahyan had not yet made an appearance in the case. “A district court has no authority, sua sponte, to dismiss for lack of personal jurisdiction.” Pilgrim Badge & Label Corp. v. Barrios, 857 F.2d 1, 3 (1st Cir. 1988). The judge reasoned that the rule of Pilgrim governed only when the defendant had waived the affirmative defense (e.g., by failing to assert it as required by FRCP 4(h)(1)). But Pilgrim doesn’t say so. More generally, plaintiffs aren’t required to plead facts sufficient to establish personal jurisdiction in their complaints. So I don’t think it’s wise for judges to examine complaints with an eye to dismissing cases that don’t appear to support the court’s personal jurisdiction. They should wait for defendants to raise the issue if they choose. I don’t think this was a denial of Orsi’s due process rights, because the judge did give him an opportunity to show that he could establish the court’s jurisdiction over Al-Nahan. Still, it’s an odd move. Maybe this was just an exercise in docket management.

Photo credit: Wikipedia

Notes:

  1. Insofar as Al-Nahyan was not residing in the United States, the ordinary time limit of FRCP 4(m) was inapplicable, so Orsi probably made this motion out of an abundance of caution. ↩
  2. Some clerks apparently do not allow plaintiffs to meet the literal requirements of FRCP 4(f)(2)(C)(ii), instead requiring plaintiffs to mail the documents themselves. There’s no indication that that’s what happened here, though. ↩
  3. Service by mail in Switzerland would violate both Swiss law and the Hague Service Convention, but that’s a small point in the mess of this case. ↩
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Martyniszyn on Transnational Discovery in Antitrust Cases

By on September 12, 2012 in Judicial Assistance Statute

I wanted to call attention to an interesting new paper by Marek Martyniszyn, a Senior Research Fellow in the Institute for Consumer Antitrust Studies at Loyola University Chicago School of Law and a friend of Letters Blogatory, titled Discovery and Evidence in Transnational Antitrust Cases: Current Framework and the Way Forward, available on SSRN. Here is the abstract:

This paper identifies and analyses the means of accessing and collecting foreign-based evidence in transnational antitrust cases. It makes an original contribution to the existing scholarship by critically addressing the available mechanisms of judicial cooperation, the possibility of reliance on domestic discovery in transnational context, as well as the existing instruments allowing for cooperation between antitrust agencies. It identifies the shortcomings of the current regulatory framework and points out to the existing good practices in those jurisdictions which provide their antitrust agencies with more leeway in sharing confidential information with foreign counterparts.

I don’t know much about antitrust in particular, and so I don’t have much to say about the thesis of the paper, namely that states should adopt mechanisms to allow their antitrust enforcement agencies to share information more easily. But the paper provides a really good overview of the culture war between American lawyers and lawyers in—well, just about everywhere. There are a lot of issues in play: (1) the prescriptive jurisdiction of the United States as seen by the US courts, which the development of antitrust law fueled but which has been the subject of recent fits of judicial modesty (e.g., Morrison, the grant of cert in Kiobel); (2) the personal jurisdiction of the US courts, also the subject of recent judicial hand-wringing; and (3) foreign states’ conception of their own territorial sovereignty. But I think that to some extent the culture war looks worse than it is. For one thing, while the US seems to be limiting its assertions of extraterritorial jurisdiction, other states may be increasing theirs. As noted in the International Bar Association’s 2009 report on extraterritorial jurisdiction with reference to antitrust in particular (at p. 63):

The most significant extraterritoriality effects have long emanated from the United States. However, virtually all jurisdictions apply some form of an ‘effects’ test …. Of particular note is that, while the US courts have cut back on their historically aggressive extraterritorial reach, the courts in the United Kingdom have recently expanded their jurisdiction, at present providing some measure of EU-wide private damage remedies.

For another thing, as I have pointed out on numerous occasions, while European or other foreign firms are almost always displeased to find themselves as defendants in US civil litigation subject to the rigors of discovery under the Federal Rules of Civil Procedure, they are sometimes all too happy to make use of the FRCP and 28 U.S.C. § 1782 when it suits their discovery needs in aid of foreign litigation, and US companies are all to happy to argue the foreign tribunal’s non-receptivity to such evidence as a reason for denying foreign companies the discovery they seek. This makes the situation seem less a matter of principle and legal culture and more a matter of what’s expedient, at least from the perspective of the businessman if not from the perspective of the lawyer or the academic.

Read Marek’s paper—you won’t be disappointed!

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