The Curse of TracFone

Holy cow! TracFone is back in the Southern District of Florida. The first time we considered a TracFone case, I called the judge’s decision “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 second time, I wrote that “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.” Now TracFone is back again, and the decision in the latest case, TracFone Wireless, Inc. v. Technopark Co. (S.D. Fla. 2012), is just as bad.

After TracFone obtained a ruling that it was entitled to judgment against Technopark, a Hong Kong firm, for copyright and trademark infringement and other claims (Technopark had defaulted),TracFone sought to take discovery on damages prior to entry of final judgment. Fair enough—but TracFone asked for permission to send subpoenas to Hong Kong via mail. And the court allowed it! I will not repeat everything I wrote in the first post about why this is clearly wrong. I’ll just summarize as follows:

  1. Service of any subpoena by mail is probably improper under Rule 45.
  2. Service of a subpoena is territorially limited by Rule 45.
  3. The mere fact that Hong Kong has not objected to service of judicial documents via postal channels under the Hague Service Convention does not enlarge the powers of the US court under US procedure.

Judges of the Southern District of Florida—what’s up? Let’s do a better job, please!

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.

Leave a Reply

Your email address will not be published.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