We have frequently noted the that a foreign central authority’s certificate under Article 6 of the Hague Service Convention is prima facie evidence of service of process. In the discussion of Zions First Nat’l Bank v. Moto Diesel Mexicana, the case of the day from July 21, 2011, the Mexican defendant had been served with the papers but had argued that the service had not complied with Mexican law. The court refused to credit the defendant’s arguments in light of the central authority’s certificate, causing me to ask whether US courts mean it when they say that Article 6 certificates are merely prima facie evidence of service: aren’t they really close to conclusive?
Today’s case of the day, Fish & Richardson PC v. Camtek Ltd. (D. Minn. 2011), is an example of a case where the court, probably incorrectly in my view, rejects the plaintiff’s assertion that it had made service of process notwithstanding the central authority’s Article 6 certificate. But because the case arose on a motion for relief from a default judgment rather than on a motion to dismiss for insufficient service of process, I won’t say that the case was wrongly decided.
Fish & Richardson had defended Camtek, Ltd., an Israeli firm that manufacturers “Falcon” automated optical inspection equipment, in a patent infringement case in the District of Minnesota. F&R’s bill was more than $7 million. The case went to trial, and the verdict was that Camtek had infringed the plaintiff’s patent and was liable for $6.78 million in damages. Additionally, the court enjoined future sales of the “Falcon” product. Camtek dismissed F&R and refused to pay the outstanding portion of F&R’s bill.
F&R sent the summons and complaint to the Israeli central authority for service under Article 5(a), i.e., service “by a method prescribed by [Israeli] internal law for the service of documents in domestic actions upon persons who are within its territory.” The request for service contained an address for Camtek that, according to a later declaration from Camtek’s CFO, was incorrect. In fact, it appears that the address was the address for a post office in Israel where Camtek received its mail. The Israeli central authority returned a certificate stating that the documents had been served on Camtek pursuant to Israeli law. The court ultimately entered a default judgment against Camtek, at which point Camtek moved for relief from the judgment under Fed. R. Civ. P. 60(b)(4), which provides for relief from a void judgment, arguing that it had never been served with the summons and complaint. According to affidavits submitted by F&R, a postal clerk handed the papers to Erez Ashkenazi, a representative of Camtek. According to affidavits submitted by Camtek, Mr. Ashkenazi did not recall receiving the papers and claimed that he would have remembered them had he received them, and he denied that he had signed the acknowledgment form.
The court was in the unenviable position of having to weigh the competing affidavits, comparing specimens of Mr. Ashkenazi’s signature to the signature on the acknowledgment form, and so forth. The court also was faced with arguments from Camtek that the method of service (delivery by the central authority to the post office, and then delivery from the post office to the defendant) did not comply with Israeli law. These are precisely the kinds of determinations that an Article 6 certificate should allow the US court to avoid having to make. It seems particularly clear that the US court should not be in the business of second-guessing the foreign central authority as to whether the method of service used complied with the foreign law. But even on the factual dispute presented by this case, it’s not clear why the court should credit Mr. Ashkenazi’s affidavit, which doesn’t squarely deny receipt of the documents (or maybe even the authenticity of the signature on the acknowledgment form: the affidavit states: “I do not recognize any signatures on the document as my signature” and notes that the specimen signature he provided is “nowhere to be found” on the acknowledgment form), over the central authority’s certificate and the affidavit of the Israeli postal clerk who says she actually handed the documents to him.
If the sufficiency of service had arisen in this case on a motion to dismiss, I would readily say that the court had decided wrongly. But here, Camtek was seeking relief from a default judgment. There is an important policy in favor of deciding cases on the merits rather than by default, and any doubts should be resolved in favor of the defendant. Even so, on these facts, it’s not clear to me that Camtek was entitled to relief. But if the decision is wrong, it is less wrong than it would have been had the issue arisen prior to judgment.