Tag Archives: Sweden

Case of the Day: Shoham v. Islamic Republic of Iran

The case of the day is Shoham v. Islamic Republic of Iran (D.D.C. 2013). Batsheva Shoham alleged that while she was driving in the West Bank with her infant son, she was ambushed by members of the Al-Aqsa Martyrs Brigade, a terrorist group. One of the terrorists threw a stone that struck her son, killing him. In 2011, Mrs. Shoham and victims of similar attacks sued Iran, Syria, and others in the District of Columbia. Judge Collyer severed Mrs. Shoham’s claims from the action and granted her leave to refile with a new caption, noting that the summonses would have to be reissued and that the amended complaint would have to be served.

Mrs. Shoham then filed a new action, with a complaint identical to the complaint in the prior action, but with a new caption. The remaining plaintiffs in the first case managed to serve Iran and its instrumentalities with process via diplomatic channels. After the court ordered Mrs. Shoham to show cause why her new action should not be dismissed for want of prosecution (as she had filed no return of service after six months), Mrs. Shoham moved for entry of default judgment on the theory that despite Judge Collyer’s order, service of the original complaint in the first action sufficed. She cited precedents for the proposition that service of an amended complaint under the FSIA after a default by the foreign state is necesssary only if the amendments are substantial.

Judge Lamberth distinguished these cases on the grounds that they involved the service of an amended complaint in a single action, not, as was the case here, service of a complaint in an entirely new civil action. It hardly matters, from the jurisdictional point of view, whether the complaint in the second action was similar or even identical to the complaint in the first. However, the judge did give her additional time to effect service, and he blasted the government for the high fees it charges to effect service via diplomatic channels under the FSIA.

Mrs. Shoham also sought leave to serve Bank Melli, Bank Saderat, and Iran Air in Austrialia, Canada, France, Italy, Hong Kong, the Netherlands, Sweden, and the UK, by registered mail, return receipt requested. The judge granted the request. All three defendants are agencies or instrumentalities of Iran for purposes of the FSIA. Therefore, service was governed by 28 U.S.C. § 1608(b). Mrs. Shhoam had been unable to make service by registered mail at the defendants’ headquarters in Iran, and therefore her request was proper under § 1608(b)(3)(C), which permits service by delivery of the documents “as directed by order of the court consistent with the law of the place where service is to be made” when other means of service have failed. All of the countries named are parties to the Hague Service Convention, and none has objected to service by postal channels under Article 10(a). 1 The judge held, correctly, that service by mail under Article 10(a) despite the minority view to the contrary.

Note that § 1608(b)(3)(C) asks whether the service is “consistent with the law of the place where service is to be made.” Is there an issue about whether service by postal channels is consistent with the law of the state where service is to be made, particularly if in a particular state the Convention is not self-executing? The decision does not raise this issue, and I simply pose it as a question.


  1. Australia requires that such service be by registered mail, return receipt requested, and I refer readers to one of my many discussions with Antonin Pribetić on the issue of service by mail in Canada.

Case of the Day: Galloway v. Flexstar Technology

The case of the day is Galloway v. Flexstar Technology (D. Colo. 2012). Galloway claimed that while he was an engineer at Seagate Technology, he provided an affidavit for use in a lawsuit against Seagate stating that Seagate had wrongfully failed to disclose evidence of its reliance on another firm’s technology in developing its own products. Galloway later went to work for Flexstar. But after the New York Times reported the contents of the affidavit, Galloway claimed that Flexstar and some of its officers and directors, including Joel Russ, conspired to terminate his employment in retaliation for his involvement in the lawsuit against Seagate.

Russ lived in Sweden. Galloway failed to serve him with process, and the magistrate judge ordered him to serve Russ by a given date or to show cause why the claim against him should not be dismissed. Galloway explained that he had begun the process of service through Sweden’s central authority, but that service had not been effected yet. The magistrate judge recommended dismissal of the claim, and Galloway appealed to the district court judge. The judge rejected the magistrate judge’s recommendation. He noted that the 120-day time limit for service of process in Rule 4(m) was inapplicable to defendants abroad, and that there was no evidence of neglect on Galloway’s part. The judge allowed an additional sixty days to effect service.

Case of the Day: RECARO North America v. Holmbergs Childsafety Co.

The case of the day is RECARO North America, Inc. v. Holmbergs Childsafety Co. (E.D. Mich. 2011). RECARO, a child safety seat manufacturer, claimed that the defendants, Holmbergs Childsafety Co., a Hong Kong company, and its affiliates, Gnosjö-Gruppen AB and Holmbergs Childsafety AB, both Swedish companies, designed and manufactured the “A-locks” that it used in its child seats. It alleged that the A-locks were defectively designed and manufactured. RECARO, working with the NHTSA, recalled the seats, but the defendants denied any liability and, according to RECARO, “blamed the consumer for intentionally misusing the Child Safety Seat.” The lawsuit followed.

Late in the discovery period, RECARO noticed several depositions. First, it noticed the deposition of Gnosjö-Gruppen, the Swedish company, and Holmbergs Childsafety, the Hong Kong company, pursuant to Fed. R. Civ. P. 30(6)(b). That rule provides:

In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

RECARO also noticed the depositions of several of the defendants’ officers by name. All of the depositions were to take place in Detroit.

The defendants had not raised the issue of the Hague Evidence Convention (with regard to depositions, at least) for the nearly two and a half years the case had been pending, and discovery was nearly over. Nevertheless, the defendants objected to the notices of deposition and asserted that the depositions had to take place in Sweden and Hong Kong. The magistrate judge, noting the Aerospatiale factors, held that the depositions should go forward in Detroit. Of particular interest was the judge’s reaction to the defendants’ argument that under foreign law, the two corporations could not compel their officers and directors to travel to Detroit to testify. The court rejected this argument, noting that all of the witnesses but one were listed on the defendants’ witness list for trial, and that two of the named witnesses had submitted declarations in support of the defendants’ unsuccessful motion to dismiss the case for want of jurisdiction. The court did, however, require the plaintiff to pay the witnesses’ travel costs.

I think the court’s view on this was yet another example of the courts’ reluctance to let foreign parties use the Hague Evidence Convention unfairly. If you’re telling your opponent that you may bring the witnesses to Detroit for trial, and the witness is your employee, then be prepared to bring the witness to the US for a deposition.