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 pointofmail.com, 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


10 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 […]

  3. “You Have One New Lawsuit”: Can You Serve Legal Notice Through Social Media? | Socially Aware Blog

    […] 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 […]

  5. […] then that lawyer is an easy and natural target for a motion for leave to serve by alternate means. Run silent, run deep. But then the defendant runs a risk of a default judgment and has to be pretty darn confident that […]

  6. […] note on strategy. It is sometimes advisable for companies in Protonmail’s position to “run silent, run deep,” or in other words, simply to ignore the proceedings altogether. Of course, you take the […]

  7. […] then hire a lawyer and make your arguments. But if you would take a default judgment, then run silent, run deep. You will want to preserve your ability to argue, in your local court, that the US judgment is void […]

  8. […] In short, this is an easy case. Noboa ran afoul of the rule for lawyers when trying to duck service: run silent, run deep: […]

  9. […] each of these defendants via email using RPost’s service. You may remember RPost from the case of the day of February 7, 2012, in which RPost was the plaintiff and used its own email technology to effect […]

Leave a Reply

Your email address will not be published. Required fields are marked *

Thank you for commenting! By submitting a comment, you agree that we can retain your name, your email address, your IP address, and the text of your comment, in order to publish your name and comment on Letters Blogatory, to allow our antispam software to operate, and to ensure compliance with our rules against impersonating other commenters.