Case of the Day: Kowalski v. Anova Food, LLC

The case of the day is Kowalski v. Anova Food, LLC (D. Hawaii 2012). Kowalski and Hawaii International Seafood, Inc. sued Cleasrsmoke Technologies, Ltd., a Malta corporation. The plaintiffs first attempted service by email to Clearsmoke’s lawyer on the mainland, and then by personal delivery to Clearsmoke’s Hawaii lawyer. But in either case did Kowalski seek leave of court before attempting the service. The court entered Clearsmoke’s default at Kowalski’s request, and Clearsmoke sought to vacate the default (the court later vacated the default). Kowalski then moved for leave to serve process on Clearsmoke’s Hawaii counsel under FRCP 4(f)(3).

The court correctly refused to retroactively “validate” Kowalski’s faulty attempts to serve process (I’ve written about this issue before). But the court also refused to allow Kowalski’s motion for leave to make alternative service, noting that Kowalski had not even attempted service in Malta, a party to the Hague Service Convention.

I think this decision was well within the judge’s discretion. The judge correctly pointed out that in other cases where courts had approved alternative service, there were barriers of one kind or another to attempting service via the Convention. But the decision should not be overread—there is no requirement of exhaustion of other options before a plaintiff can resort to alternative means of service.

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.

One thought on “Case of the Day: Kowalski v. Anova Food, LLC

  1. My post also shouldn’t be overread! I wrote, “There is no requirement of exhaustion”when I should have written, “There should be no requirement of exhaustion.” There are cases that do impose such a requirement. So be careful!

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