Case of the Day: Gundlach v. IBM
Posted on May 7, 2012
The case of the day is Gundlach v. IBM (S.D.N.Y. 2012). Frederick Gundlach sued IBM Japan, Ltd. for breach of contract and violations of the Japanese labor law. He served the summons and complaint by registered mail, which he apparently mailed himself. IBM Japan moved to dismiss for insufficient service of process. The judge denied the motion.
Japan’s formal declaration, according to the Hague Conference website, reads:
It is declared that the Government of Japan objects to the use of the methods of service referred to in sub-paragraphs (b) and (c) of Article 10.
Because Japan has not objected to service by postal channels under Article 10(a), the judge was right to conclude that nothing in the Convention barred service by mail. In the Second Circuit, that may be enough, because according to the district court, the Second Circuit takes the view that the Convention affirmatively authorizes service by mail; thus there is no need to ask whether any provision of the FRCP authorizes service by mail. Ackerman v. Levine, 788 F.2d 830 (2d Cir. 1986), as interpreted by Papir v. Wurms, No. 02 Civ. 3273 (RCC), 2005 WL 372061 (S.D.N.Y. Feb. 15, 2005). The better view, in my opinion, is that the Convention merely does not forbid service by mail, and that service by mail abroad is proper only if in accord with the law of the forum. Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004). This point has only a minor practical implication: it means that if you serve by mail in a Hague Convention country in a federal case, you should make sure that the clerk rather than the plaintiff transmits the papers, and that you use a form of mail requiring a return receipt. The only express authority for service by mail abroad in a federal case is FRCP 4(f)(2)(C)(ii), which requires that the clerk transmit the papers using a form of mail requiring a receipt.