Case of the Day: Myrtle v. Graham
Posted on February 11, 2011
In today’s case of the day, Myrtle v. Graham (E.D. La. 2011), Myrtle and British-American Insurance Group sued Graham and Aon Corp. for libel in the St. Tammany Parish District Court in Louisiana. The claim was that Graham, on behalf of Aon, had sent letters to various third parties falsely stating that Aon would no longer do business with British-American because Myrtle, who worked for British-American, had misappropriated Aon funds. Aon removed the case to the federal court.* Graham, who resided in the UK, moved to dismiss for insufficient service of process, but the Court denied the motion. Graham claimed that the papers were delivered to a person who was neither his agent nor his attorney, and that service was therefore improper. Myrtle claimed that he had sent a proper request for service abroad to the English central authority, and that the central authority’s certificate of service was prima facie evidence that the service had complied with the Hague Service Convention. The Court agreed with Myrtle and noted that in order to rebut the prima facie showing of service, the defendant had to show either a lack of actual notice or else prejudice: “[W]here the plaintiff made a good faith attempt to comply with the Convention, and where the defendant received sufficient notice of the action such that no injustice would result, it is within the Court’s discretion to deem service of process properly perfected.” (I think this reference to discretion seems to confuse the notion of whether the defendant has rebutted the prima facie effect of the central authority’s certificate of service with the notion of whether, in general, a court should require strict compliance with the formalities of service when the defendant has notice of the case and there is no prejudice).
*Note for civil procedure buffs: Aon removed the case before Graham had been served with process, and the notice of removal does not indicate that Graham joined in the removal. It seems that Graham had actual notice of the complaint because Myrtle sent him a courtesy copy by mail. Could the defendants have objected to the removal of the case to federal court? See In re Pharmaceutical Indus. Avg. Wholesale Price Litig., 431 F.Supp.2d 109, 120-21 (D. Mass. 2006) (Saris, J.).