Case of the Day: Two Moms And A Toy v. International Playthings

The case of the day is Two Moms And A Toy v. International Playthings (D. Colo. 2012). The claim was for infringement of US Patent 6,782,567, which describes a “fountain water toy utilizing a battery-powered pump.” One of the defendants was Golos Weisman Design, Ltd., an Israeli partnership. According to the return of service, a private process server personally served the documents on one of the principals of Golos Weisman, Ronit Golos-Frosting (who refused to acknowledge receipt) and by leaving them at the dwelling of two other principals, Zafrira Weisman-Zinger and Israel Zanger. Golos Weisman failed to answer, and the clerk entered its default. Another party, International Playthings, LLC, moved to vacate the entry of default on the grounds that Two Moms And A Toy had not properly served the summons on Golos Weisman.

The judge agreed and vacated the default. He agreed with the plaintiff that because Golos Weisman’s address was unknown, the Hague Service Convention did not apply, but he reasoned that the plaintiff was required to seek leave to serve process using “other means not prohibited by international agreement, as the court orders,” under FRCP 4(f)(3). It was not disputed that the plaintiff had not sought leave under FRCP 4(f)(3). The judge pointed out that Israel had made a declaration concerning service under Article 10(b) and (c) of the Convention, which relate to service through the “judicial officers, officials or other competent persons of the State of destination”:

The State of Israel, in its quality as State of destination, will, in what concerns Article 10, paragraphs b) and c), of the Convention, effect the service of judicial documents only through the Directorate of Courts, and only where an application for such service emanates from a judicial authority or from the diplomatic or consular representation of a Contracting State.

I think the outcome of the decision is correct, though I think the judge was probably wrong to say that the plaintiff had to proceed under FRCP 4(f)(3). It seems to me the plaintiff could have proceeded under FRCP 4(f)(2)(C)(ii), which provides for service by “any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” Israel has not objected to Article 10(a) of the Convention, which is the provision permitting service by mail through postal channels. It seems that even though this is a patent case, and an appeal would therefore lie to the Federal Circuit rather than the Tenth Circuit,1See Jordan v. Nissan Motor Co., 34 F.3d 1079 (Fed. Cir. 1994), the Tenth Circuit has not decided the question. So the plaintiff may have had good reason not to choose service by mail. In this case, probably service via the central authority would have been the best option. Or else the plaintiff could have sought leave to make service by alternate means, though Golub Weisman has been clever—by not having its own lawyer make an appearance in the case, it has not given the plaintiff an easy target, e.g., an order under FRCP 4(f)(3) permitting service on its own lawyer.

Interestingly, the plaintiff filed a second return of service very shortly after the judge’s order, purporting to effect service on Golub Weisman by service on a company in the US that is purportedly its agent. Why go through all this trouble? Even if the plaintiff is right, it seems to me that service via the central authority would have been effected by the time all the motion practice is finished.

One response to “Case of the Day: Two Moms And A Toy v. International Playthings”

  1. On October 29, the court, sua sponte, dismissed the action as to Golub Weisman and another defendant without prejudice for failure to effect service of process. The judge noted that the plaintiff had had two years to make service and had not explained its failure to do so. It seems to me that this was needless. The plaintiff should have tried to make use of the central authority mechanism at the outset of the case, and if that method proved ineffective (for example, if Golub Weisman’s address was unknown), the plaintiff should have sought leave to make service by alternate means under Rule 4(f)(3).

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