Case of the Day: Tracfone Wireless, Inc. v. Bitton
Posted on January 25, 2012
In October 2011, we considered TracFone Wireless v. Doe (S.D. Fla. 2011), a decision I called “one of those rare cases that is so wrong that I hope it does not get into the F. Supp.2d, so as to avoid misleading lawyers.” The October decision authorized service of a subpoena by mail in Canada for purposes of discovering the identity of the defendant, who was sued as a John Doe. Yikes! Read the prior post for an explanation of why that can’t possibly be right.
Today’s case of the day, Tracfone Wireless, Inc. v. Bitton (S.D. Fla. 2012), is a follow-on decision in the same case (with a different judge presiding). Unfortunately, the decision, while maybe not as wrongheaded as the first decision, is muddled and confused. If someone at West Publishing is reading this: do not put this decision in the F. Supp.2d or the F.R.D.
It appears that TracFone was successful in obtaining discovery in Canada regarding the identity of the defendants, which goes to show that even an erroneous decision can help in a litigation! TracFone returned to court with a motion regarding service of process on the two. One, Isaac Bitton, was a resident of Canada. The other, Trung True, was a resident of Vietnam. TracFone sought leave to serve Britton “via international mail to the Quebec Central Authority … pursuant to [Rule] 4(f)(1).” It sought leave to serve both defendants by Fedex sent by the clerk pursuant to Rule 4(f)(2)(C)(ii). It sought leave to serve both defendants by Fedex sent by TracFone itself pursuant to Rule 4(f)(3). And it sought leave to serve True by email pursuant to Rule 4(f)(3).
The judge really mangled the first request. A litigant doesn’t need leave of court to transmit papers to a foreign central authority (though there is a view that says that the clerk rather than the plaintiff’s lawyer should transmit the papers, and if you hold that view, if may be necessary to pay a visit to the clerk’s office or even to make a motion to get the letter issued properly). The judge correctly held that Article 10 of the Convention permitted service of process by mail, but this is a non sequitur, as transmission of the documents to the foreign central authority is not service and Article 10 does not come into play. Strange. Still, the judge did reach the right outcome, which is that of course the plaintiff may send the papers to the foreign central authority via Fedex.
The judge granted the motion for service by mail sent by the clerk. This decision seems correct to me as to Canada (but see the discussion here for another view by a Canadian lawyer), and though I disclaim any knowledge of Vietnamese law, the plaintiff submitted evidence that Vietnamese law does not prohibit service by mail.
But then, strangely, the court went on to approve service by Fedex sent by the plaintiff itself under Rule 4(f)(3). Why would you need both methods of service? Again, very strange.
Last, the court approved service by email on the Vietnamese defendant in a perfunctory discussion. I think this is probably a permissible result. Since Vietnam is not a party to the Hague Service Convention, nothing bars such service. But I reiterate my view that the Convention does not permit service by email.