Case of the Day: RPost Holdings, Inc. v. Kagan

USS AshevilleThe case of the day, RPost Holdings, Inc. v. Kagan (E.D. Tex. 2012), is yet another example of why you shouldn’t let your lawyer communicate with the plaintiff if you intend to duck service. RPost sued Dmitry Kagan for trademark and patent infringement on account of, a website it alleged Kagan owned. RPost attempted to make service on Kagan in Israel via the central authority mechanism under the Hague Service Convention, but the central authority responded that Kagan had moved to an unknown address. RPost managed to make email contact with Kagan: it received a response to its email from Jonathan Agmon, who stated that he represented Kagan “with regard to responding to your letter.” Agmon refused to accept the summons and complaint on Kagan’s behalf or to provide a valid address where Kagan could be served under the Convention. RPost then asked for leave to serve the complaint by email on Kagan and Agmon.

The court agreed. First, the Convention does not apply, because Kagan’s address is unknown, and RPost acted with reasonable diligence. Second, the service requested complied with due process, because it was clear, from the fact that Agmon had responded to the email to Kagan, that the email had in fact reached Kagan. In a neat twist, RPost said it had used its own “registered E-mail technology” to verify that Kagan had received the message.

The moral of the story: if you intend to duck service, run silent and run deep. Once your lawyer surfaces, the court will likely permit service on the lawyer, particularly if he is intransigent and refuses to provide an address for you or to accept service on your behalf.

Photo Credit: United States Navy

5 responses to “Case of the Day: RPost Holdings, Inc. v. Kagan”

  1. That is a funny story. Why would someone trying to hide respond at all?

    I’m glad that RPost was able to use their cool email technology, too. That’s justice!

    1. Thanks, David, for commenting! You ask why someone trying to hide would have a lawyer respond at all to the plaintiff. It happens more often than you would think. I believe the reason that it happens is that lawyers don’t realize that the court can authorize service by alternate means, which can mean service on the lawyers themselves!

  2. […] to the US lawyers who had submitted the claims in the in rem action on their behalf. I’ve frequently reported on cases where a US lawyer surfaces for a foreign defendant in a lawsuit for one reason or another […]

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    […] those more traditional means.  And third, some means of Internet communication enable senders to confirm electronically that their messages have been opened or received by the intended […]

  4. […] method of service is clearly insufficient, then the foreign defendant’s best move is to run silent, run deep. Seeking dismissal where the service was clearly improper just exposes you to service through your […]

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