The case of the day is Richmond Technologies, Inc. v. Aumtech Business Solutions (N.D. Cal. 2011). Richmond Technologies, which did business as ePayware, “provides enterprise resource planning software for financial service companies who provide credit card terminals to merchants.” So it is a middleman’s middleman’s middleman, I guess. Aumtech’s status was unclear. According to Richmond, Aumtech was “an unincorporated association consisting of Damien Joseph Polito, Jennifer Polito, and the principals of Aumtech i-Solutions Pvt. Ltd. (Shankar Bose and Ila Bose).” Aumtech i-Solutions was an Indian corporation with its offices in New Delhi, and the Boses were an Indian husband and wife. Aumtech, on the other hand, asserted that it was “a newly formed limited liability company of which Jennifer Polito is the President and Aumtech India is a member.” Damien Polito claimed to be “a prop maker for film production companies” with nothing to do with the Aumtech business.
The claim was that Aumtech had a contract to supply software services for Richmond, but that Aumtech India and the Politos “hatched a plan” to sell the software services directly to Richmond’s customers in the United States. Richmond served process on the American defendants, Aumtech Business Solutions and the Politos, but beyond sending an email notice to Aumtech India and the Boses, Richmond had not served process on the Indian defendants. Richmond sought leave to make alternate service by serving the summons and complaint on the Indian defendants’ US lawyer, who had entered an appearance in the case.It argued that service via the central authority could take six to eight months.
The court permitted the alternate service, though its reasoning was imperfect. The court noted:
Some courts have reasoned that alternative service may be ordered pursuant to Rule 4(f)(3) as long as the alternative method of service is not expressly prohibited by the Convention or objected to by the receiving state.
The better reasoning, I think, is that because service on the attorney does not require transmission of a document to India, the Convention does not even come into play. Nor does service in the United States offend Indian sovereignty, though any plaintiff contemplating making use of alternative means of service ought to consider carefully whether the use of non-Convention methods of service will affect the willingness of the foreign state’s courts to recognize and enforce the judgment.