Case of the Day: Miochnovez v. Blair, LLC

The case of the day is Michnovez v. Blair, LLC (D.N.H. 2011). According to the pleadings, the plaintiff’s decedent has been killed when her bathrobe had caught fire while she was cooking. A-One Textile and Towel Industries, a Pakistani firm, manufactured the robe and was one of the defendants in the wrongful death suit.

Pakistan is a party to the Hague Service Convention. But Michnovez was advised by the process service firm he hired to effect service that the central authority mechanism rarely worked in Pakistan. So instead, Michnovez hired a private process server who served the summons and complaint on Haji Muhammad Ashraf, identified on the return of service as “owner/director” of A-One.

Michnovez asserted that the service was valid under Article 10(c) of the Convention, which provides:

Provided the State of destination does not object, the present convention shall not interfere with—
* * *
the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

But if I can reframe the court’s discussion a bit, the court correctly held that the service not only had to be permissible under the Convention, it had to be permissible under the law of the forum, i.e., the Federal Rules of Civil Procedure—a point we’ve considered before.

Here is the analysis:

  1. Rule 4(f)(1), which permits service by methods “authorized by” the Convention, did not apply, because Article 10 does not “authorize” methods of service, but merely provides that the Convention does not interfere with those methods of service (unless the destination state objects).
  2. Rule 4(f)(2)(C)(1), which permits service by “delivering a copy of the summons and of the complaint to the individual personally” (unless the destination state’s law forbids such service), did not apply, because Rule 4(h)(2) expressly provides that Rule 4(f)(2)(C)(1) is not available for service on corporations abroad.
  3. The only method that could, on its face, apply is Rule 4(f)(2)(A), which permits service “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction.”

But Michnovez had not really done anything to show that Pakistan law permitted service on a corporation in domestic litigation by personal service on a person such as Ashraf. So the court dismissed without prejudice.

I think the court got this just right.

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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