Case of the Day: Tang v. CS Clean Systems AG

In the case of the day Po-Hi Tang v. CS Clean Systems AG (S.D. Cal. 2011), the plaintiff transmitted a summons and complaint to the German central authority for service.  When trouble arose, the court authorized service of process by alternate means, namely, on a US lawyer who had previously represented the defendant is US litigation between the parties and who was registered agent for service of process on the defendant’s US subsidiary. What is really interesting about the case, though, is the reason why trouble arose with the use of the central authority mechanism in Germany. The addressee, an officer of the defendant, had asked the German court to instruct the Central Authority not to make the service, and a decision was still pending. I’ve got to say that I wasn’t aware that German law permitted such a challenge. I’m somewhat surprised that this is so. Central authorities themselves can refuse to execute requests for service in very limited circumstances (the case is not “civil” or “commercial”; the form of the request does not comply with the Convention in some way; the state deems compliance to infringe its sovereignty or security under Article 13). But typically the central authority acts or refuses to act on its own, without prompting from the party to be served.

If, as in the American view, the purpose of service of process is to provide the defendant with notice, it’s somewhat perverse to give the defendant the ability to refuse to be notified of the claims against him.

Any readers with insight on German practice here?

 

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 2012), 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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