Tracfone Case Rightly Decided
Posted on June 6, 2012
I have commented critically on several decisions in the Southern District of Florida in cases brought by Tracfone against various foreign defendants. In one, the judge allowed a motion for leave to serve a subpoena on a non-party in witness in Canada. In another, the decision was not so clearly wrong but was strange and confused. And in a third, the judge again allowed service of a subpoena abroad, this time in Hong Kong. Yikes!
But in today’s case of the day, Tracfone Wireless, Inc. v. Unlimited PCS, Inc. (S.D. Fla. 2012), the judge seems to have gotten the issues right. First, she ruled that service by mail was permissible in Hong Kong, which, as I opined in my post on Pacific Worldwide v. Ample Bright Development, seems correct.1
Second, the judge correctly ruled that Article 10(a) of the Convention permits service of process by postal channels. This is absolutely right. The judge went on to hold that private couriers such as Fedex come within the definition of “postal channels” for purposes of Article 10(a), which is in line with the majority of decisions.
- There is one oddity: Tracfone told the judge that the request for service for process under the Convention needed to come from the Clerk because Hong Kong’s central authority requires the request to come from “Judicial officers, officials or other competent person.” I’ll just say in passing that the competence of the requester is a matter of the law of the forum and that as a matter of US law, it seems that a party’s attorney is competent to transmit a request for service, but perhaps the Hong Kong central authority erroneously takes the view that the request must come from the clerk. If that is so, then Tracfone acted prudently.