Case of the Day: Gurung v. Malhotra
Posted on December 5, 2011
The case of the day, Gurung v. Malhotra (S.D.N.Y. 2011), involves unsavory allegations of mistreatment of a domestic laborer by a foreign official. Shanti Gurung sued Neena Malhotra, the Counselor of Press, Culture, Information and Community Affairs at India’s consulate general in New York, and her husband, Joseph Malhotra. The claim was that the Malhotras “essentially kidnapped” Gurung in India when she was seventeen years old, trafficked her to the United States, and held her in peonage, paying her the equivalent of $120 for 40 months of work. Gurung brought various federal and New York constitutional and statutory claims, a claim under the Alien Tort Statute alleging violations of various provisions of international law, and common law claims of fraud, false imprisonment, assault, conversion, quantum meruit, intentional infliction of emotional distress, and unjust enrichment. Yikes!
After filing her complaint, Gurung sought to serve process on the Malhotras via the Indian Central Authority, to no avail. After five months passed, Gurung sought leave, under Rule 4(f)(3), to serve process by alternate means. The judge granted the motion, concluding that the Malhotras were seeking to evade service and that they had actual notice and a copy of the complaint. He authorized service by three means: (1) publication in Indian newspapers; (2) certified mail (presumably international registered mail, as certified mail is not an international service); and (3) electronic mail to Mrs. Malhotra’s publicly-available governmental email address.
The Indian Central Authority, in a letter to the process server the court had appointed to serve process, Crowe Foreign Services, refusing to grant the request for service under Article 13 of the Hague Service Convention, which permits a state to refuse to execute a request for service “if it deems that compliance would infringe its sovereignty or security.” The Indian government claimed that the process constituted “infringement of the immunity provided to the career diplomat,” Mrs. Malhotra.
The Malhotras did not answer the complaint, and Gurung moved for entry of a default judgment. After Gurung made her motion for entry of judgment, the Government of India intervened in the case as an amicus curiae to assert service of process defenses.
I am afraid that I don’t agree with much of what the judge had to say.
The Article 13 Certificate
The judge began by considering the central authority’s refusal to serve the documents.
The Court rejects [India’s] threshold argument that … service through the Indian Central Authority is the only available and proper form of service in this action. Volkswagenwerk stands for the proposition that, “[u]se of the Convention procedures, when available, is mandatory if documents must be transmitted abroad to effect service.”
It’s true that the Convention is mandatory. But the judge’s emphasis on the phrase “when available” led him to conclude—wrongly, I think—that if India refused, on Article 13 grounds, to execute the request for service of process, then an order permitting alternate means of service under Rule 4(f)(3) would be impermissible:
Next, the Court must consider whether the February 2011 Letter [asserting the Article 13 objection] was a proper exercise of [India’s] right, under Article XIII of the Convention, to refuse to complete service. If [India’s] refusal was improper, then service through the Central Authority has failed and alternatieve means of service are permissible. If [India’s] refusal to complete service was grounded upon concerns for its sovereignty or security, as provided for in Article XIII, such a refusal would preclude service of the complaint as contrary to the terms of the Convention and therefore impermissible under Rule 4(f)(3).
This is wrong in a lot of ways. First, one of the main purposes of Rule 4(f)(3) is to provide relief where the foreign central authority refuses to make service. See 4B Wright & Miller § 1134 (Rule 4(f)(3) is meant to be used “when the Central Authority of the foreign country has refused to serve a particular complaint”). Second, Article 13 only permits a central authority to refuse to make service; it does not permit the foreign state to object to the service of process if the plaintiff proceeds by another method permitted by the Convention. Third, under Article 1, the Convention does not apply at all if no document is to be transmitted abroad. So if the US court authorizes a method of service that does not require transmission of the document to the foreign country, then the foreign central authority’s objection is neither here nor there.
The judge’s view on this led him to a detailed investigation into whether the Indian Central Authority’s Article 13 certificate was legitimate; the judge concluded that the Central Authority’s objection to the service was based on diplomatic immunity rather than on considerations of sovereignty or security. In my opinion, a US court should not second-guess a foreign government’s assertions about what is or is not in the interests of that government’s sovereignty or security. Disputes about such matters should be settled through diplomatic channels, as provided by Article 14. This judge could have avoided this issue altogether had he not wrongly believed that the Article 13 certificate barred service by any means rather than just barring service via the central authority mechanism.
Service by Email
The judge then turned to the permissibility of the methods of service that Gurung had used. The most interesting of these, to my mind, is service by email. India had objected to service by postal channels, as it was entitled to do under Article 10 of the Convention. The judge concluded that this objection did not bar service by email, and there is some district court precedent for that view. But in my opinion, it is incorrect. I reason as follows.
- Email is either within the meaning of the term “postal channels” or it is not. If it is within the meaning of “postal channels”, then India’s objection makes service by email impermissible. I opined in my post on XCentric Ventures v. Karsen, Ltd. that in general, email is not within the meaning of “postal channels” in light of Article 14 of the Universal Postal Convention.
- If, on the other hand, email is not within the meaning of the term “postal channels”, then it seems to me that there is no other provision of the Convention that permits it. And if that is the case, the service by email is permissible, it seems to me, only if you take the view that when you serve a document by email to a defendant in India, the document is not being transmitted to India within the meaning of Article 1. For if the document is being transmitted to India, then the Convention applies, and only methods of service permitted by the Convention are permissible. You could delve into the details of what actually happens, in a technical sense, when you send an email, but it seems to me that functionally, sending an email to a person in India is the equivalent of sending the document contained in the email into India.
So I don’t think, despite the occasional precedent to the contrary, that service by email is available under the Hague Service Convention.
Because the service was proper in the judge’s view, Gurung was entitled to a default judgment. I don’t disagree with the ultimate conclusion, because the judge authorized service by publication as well, and it seems to me that service by publication avoids any Convention problems and that the judge was right to conclude that service by publication satisfied the requirements of due process on the facts of the case. But that being said, I think much of the judge’s reasoning was incorrect.