Case of the Day: Gundlach v. IBM

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.

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.

8 thoughts on “Case of the Day: Gundlach v. IBM

  1. Louis M. Solomon has commented on the other interesting issues in the case, namely IBM Japan’s personal jurisdiction and forum non conveniens arguments, at the Cadwalader International Practice Law Blog.

    1. Mr. Folkman, I am a lawyer who is inactive in both Pennsylvania and New Jersey. (Judge Seibel acknowledges this on the top of page 7, which was not exactly beneficial to me, since I lost certain pro se protections.) Comments by me on my website, of course, are not meant to be, and should not be taken as legal advice.

      The entry you refer to discusses the situation where the local court clerk’s own rules mean that his/her office will not accept papers for service to the defendant abroad. As is so typical of things with Japan, very simple matters are made convoluted when Japan wants to write in exceptions to its end of the bargain.

      1. Mr. Gundlach, since your case is ongoing feel free not to answer, but I’m curious about your views as to the enforceability of an eventual judgment against IBM Japan Ltd. in Japan. Do you have reason to believe that the judgment would be recognized and enforced in Japan? I am always on the lookout for reports from the field, as it were. Thanks!

        1. It very much counting chickens before the eggs are hatched–even more like counting chickens before there are chickens to lay eggs. But I am operating under the notion that if Japan would not enforce that hypothetical judgment, the US federal court system would allow me to stand as judgment creditor whenever IBM Japan were a creditor in the States. (Similarly, if IBM has receivables or property in the US.)

          With any big multinational, there must be times when the affiliate abroad is in a creditor position with respect to the parent.

          This afternoon, the district court judge ordered a reconsideration on one point that I lost in the opinion, so I obviously have to focus my energies on that, and on the second amended complaint for the issues where I prevailed. Thank you for your interest in the topic of course.

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