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.