Case of the Day: Klein v. United States

The case of the day is Klein v. United States (W.D.N.Y. 2011). David E. Klein sued the government to recover taxes he claimed had been wrongly assessed. The government counterclaimed against Klein and another, Rakesh Aggarwal. The government served process on Aggarwal by “attachment of a copy of the summons and counterclaim to the front door of Aggarwal’s residence in Singapore, and by the subsequent mailing of a copy of those papers to the same residence.” When Aggarwal failed to appear, the government obtained a default judgment against him.

Aggarwal then moved to vacate the default judgment on the grounds that he had not been properly served with the summons and complaint. He agreed to accept service of process through his lawyer if the judgment were vacated.

Singapore is not a party to the Hague Service Convention, so the parties agreed that Fed. R. Civ. P. 4(f)(1) was inapplicable. The government could have sought to make service under Rule 4(f)(2), which provides several permissible modes of service (for instance, service under the law of the foreign country, service by mail dispatched by the clerk, personal service), but it did not. Instead, the government asserted that the service was proper under Rule 4(f)(3), which permits service “by any other means not prohibited by international agreement, as the court orders.” But curiously, the government had not sought the court’s permission to make service under Rule 4(f)(3), so the court correctly held that the service failed and the judgment was void. Easy case.

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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