Digest for March 14, 2011

Liberty Media Holdings, LLC v. Vinigay.com (D. Ariz. 2011). Where defendants were located in Brazil (a party to the Inter-American Convention but not the Hague Service Convention), and where the plaintiffs had an email address but not a physical address for the defendants, the court authorized service of process by email pursuant to Rule 4(f)(3). Under Ninth Circuit precedent, alternative means of service were permissible even if the defendants were located in a country party to one of the service conventions. Service by email is not prohibited by any applicable convention; it was the most likely way of giving actual notice to the defendants; and it comported with due process. Resort to the Inter-American Convention, according to the State Department, could take more than three years.

Feliz v. United States (D. Mass. 2011). Feliz sued MacNeill, a physician and a citizen and resident of Ireland, for medical malpractice and wrongful death on account of the death of her child. MacNeill moved to dismiss for insufficient service of process. After several extensions of time to effect service, the court granted MacNeill’s motion. The parties stipulated to entry of separate and final judgment against MacNeill under Rule 54(b) to facilitate an appeal (the claims against the other defendants remained pending in the district court), and Feliz appealed to the First Circuit. But contrary to the stipulation, Feliz then moved in the district court to vacate the dismissal. The court denied the motion on the grounds that in light of the appeal, it lacked jurisdiction. The First Circuit then remanded for an explanation of the district court’s conclusion that there was “no just reason for delay” in entry of the separate and final judgment as to MacNeill. (By way of background, the policy of the courts is against piecemeal appeals, and it is generally impermissible to enter a final judgment when some claims have not been finally resolved, but there is an exception in cases where the court finds “no just reason for delay.” Here, the First Circuit seemed concerned that the parties and the district court had collusively agreed to entry of a final judgment against MacNeill in order to create appellate jurisdiction). The court held that there was no excuse for Feliz’s failure to attempt service under the Hague Service Convention. An immediate appeal was justified, in the district judge’s view, because if the First Circuit disagreed with the dismissal, there would still be time to bring MacNeill into the case to have the claims against him considered with the claims against the other defendants.


About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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