The case of the day is Panchenkova v. Chigirinsky (Conn. Super. Ct. 2013), is an action for recognition and enforcement of a Russian divorce judgment.
The case of the day is Braverman Kaskey P.C. v. Toidze (E.D. Pa. 2013). Braverman Kaskey, the law firm that represented Maya Toidze in Cook v. Toidze, the case of the day from July 1, 2013, sued her, asserting that she had failed to pay legal fees. When the firm still represented Toidze, she resided in Markham, Ontario. However, Braverman Kaskey was unable to serve process on her at her last known address, because she had moved. Braverman Kaskey attempted to locate Toidze by “contacting the post office, checking telephone records, and conducting an internet search.” But it was unable to locate her, and so it moved for leave to serve process by publication. The court granted the motion, and Braverman Kaskey published notices in the Markham Economist & Sun and the Philadelphia Legal Intelligencer (the fee suit was pending in Philadelphia). After Toidze failed to answer, the court entered a default judgment. Toidze moved to vacate the default judgment under FRCP 60(b)(4) on the grounds that the judgment was void. She asserted that she had been living in Russia; that Braverman Kaskey could have located her “had it exerted greater effort;” that the service failed to comply with the Hague Convention or with Russian law governing service of process; and that the service did not comport with due process.
The judge rejected the argument that Braverman was insufficiently diligent in seeking to locate Toidze. Toidze says that Braverman Kaskey engaged in “pure speculation” or even bad faith when it acted on the assumption that she was still residing in Canada, but this is a pretty weak argument, as Braverman Kaskey had no reason to know that Toidze had moved to Russia.
Although the court doesn’t deal with the issues in these terms, it’s clear that the Hague Service Convention did not apply, since under Article 1 the Convention does not apply “where the address of the person to be served with the document is not known.” Some courts hold that there is a diligence requirement, but the court found that Braverman Kaskey exercised reasonable diligence. It’s also clear that Russian law was irrelevant. Under FRCP 4(f)(3), a court may authorize a method of service even if it violates foreign law (though not if it violates the Convention—but as we have just seen, the Convention is inapplicable here).
The real question is due process. The constitutional question is whether the method of service chosen was “reasonably calculated” to give actual notice. In the absence of any evidence that Toidze had moved from Markham, publication of the notice in Markham was, the court reasoned, “reasonably calculated” to reach her, even though, on the facts that were unknown to Braverman Kaskey at the time, there was little chance she would see the notice. But do not shed tears for the injustice to Toidze; Braverman Kaskey emailed copies of the relevant papers to Toidze at an email address she had provided earlier, so it seems likely she had actual notice of the proceedings (even though no one asserted that the email constituted service of process).
The case of the day is Henry F. Teichmann, Inc. v. Caspian Flat Glass OJSC (W.D. Pa. 2013). The facts of the case are not clear from the decision, but it appears that Caspian Flat Glass, the defendant, was a Russian company. Russia, as we know, has unilaterally suspended cooperation with the United States under the Hague Service Convention, and letters rogatory, while technically possible, are never effective in practice. Teichman sought leave to make service by email under FRCP 4(f)(3). The judge, understandably but wrongly, granted the motion. Rule 4(f)(3) authorizes the court to grant leave to serve process by means that violate the foreign law, but not by means that violate applicable international agreements. Here, the judge concluded that the Convention does not prohibit service by email, citing In re Potash Antistrust Litig., 667 F. Supp.2d 907 (N.D. Ill. 2009), MacLean-Fogg Co. v. Ningbo Fastlink Equip. Co., 2008 WL 5100414 (N.D. Ill. 2008), and RSM Prod. Corp. v. Fridman, 2007 WL 1515068 (S.D.N.Y. 2007). As I noted in my 2011 year in review post on service by email, MacLean-Fogg was a case where the defendant’s address was unknown and the Convention therefore did not apply. RSM is not a service by email case, and it’s not clear to me why the judge cited it. As I noted in the prior post, I read Potash as a case about whether service by email in Russia specifically is permitted (perhaps under Article 19 of the Convention) because Russian law permits it; but it’s important not to confuse that point with a general, and, I think, erroneous statement that the Convention itself permits service by email. For the most recent statement of my view on service by email under the Convention, you can refer to my post on the PCCare247 case. I continue to be on the warpath about this.
I understand why judges don’t want to leave US plaintiffs with no good options for service of process in Russia. Russia’s refusal to comply with the Convention is highly problematic. But the Convention is pretty specific on this point. Under Article 14, “Difficulties which may arise in connection with the transmission of judicial documents for service shall be settled through diplomatic channels.”