Case of the Day: Johnson v. Mitchell

The case of the day is Johnson v. Mitchell (E.D. Cal. 2012). The facts of the case are not terribly important. Suffice it to say that Johnson sought to serve a summons on two Panamanian nationals, Berrocal and Arosemena, in Panama.

Johnson’s first efforts were inauspicious. He tried to serve Berrocal and Arosemena by mail and by email, asserting that both methods of service were permissible under the California Code of Civil Procedure. But as the judge recognized, California law is irrelevant. While federal law incorporates state law on service of process when the defendant is to be served in a judicial district of the United States, it does not incorporate state law when the defendant is to be served abroad.

Johnson’s next effort was better in concept. He asked the clerk to address and mail the papers to the defendants under FRCP Rule 4(f)(2)(C)(ii), which permits service “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” But for reasons that are unclear to me, the clerk “informed plaintiff that it does not provide that service.”

Panama is a party to the Inter-American Convention on Letters Rogatory, 1 but rather than attempting service by the method prescribed by the Convention, Johnson sought and received leave to serve process by mail and email.

The interesting tidbit in this otherwise mundane case is the suggestion that at least some clerk’s offices do not facilitate service under Rule 4(f)(2)(C)(ii). This is surprising to me. I will see what I can get in the way of clarification from the Administrative Office of the US Courts.


  1. It is unclear whether the court or Johnson understood this: the court notes that Panama is not a party to the Hague Service Convention without mentioning the Inter-American Convention

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 2012), 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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