Case of the Day: Landauer Ltd. v. Joe Monani Fish Co.

The case of the day, Landauer Ltd. v. Joe Monani Fish Co. (N.Y. App. Div. 2012), is a cautionary tale for foreign plaintiffs suing US companies abroad. It’s impossible to know what the case was about from the decision, but suffice it to say that Landauer had a money judgment from an English court against Monani. Landauer sought recognition and enforcement in the Supreme Court for Bronx County, but the judge denied Landauer’s motion for summary judgment and dismissed the action without prejudice for lack of personal jurisdiction. On appeal, the Appellate Division affirmed.

The issue was service of process. Landauer had hired a process server to make service in the English action.

[U]pon arriving at the building referred to in the affidavits of service and not locating defendant’s name in the directory, [the process servers] were directed by an individual who was mopping the floor to a particular office said to belong to defendant. Although the door to that office did not bear defendant’s name, the process servers nonetheless delivered a copy of the papers to the only individual present in the office, without specifically asking that person if he was employed by defendant or authorized to receive service on defendant’s behalf.

The courts concluded that Landauer had failed to show that the service in the English action was proper, and thus the English court lacked personal jurisdiction. Lack of personal jurisdiction is, of course, fatal to the conclusiveness of a foreign money judgment (e.g., § 4(b)(2) of the UFCMJRA).

If I have a quibble with the decision, it is that the judges focused on whether the service was proper under New York law rather than under English law. The law of the forum governs the sufficiency of the service. But on these facts I doubt the service would suffice under English law, and if it did, I doubt that a US court would defer to English law in the face of the potential due process issues (the decision does not indicate one way or the other whether Monti had actual notice of the English action).

It’s tough for foreign businesses without a US presence to make sure they’re effecting service of process from across an ocean. One approach is to hire a US lawyer to handle the service for you. This is, of course, more expensive than hiring a Us process server directly, but if the lawyer is competent he or she can provide more assurance that the service was proper, and as the Landauer case shows, it’s possible to be penny-wise but pound-foolish when it comes to service of process.

A second approach, suitable for use in countries that are party to the Hague Service Convention, is to make a request to the US central authority to effect service. Again, this may be somewhat more expensive, and it may require the approval of the foreign court (depending on the laws of the state where the action is pending). But in practice a US court is likely to give greater deference to a certificate of the US central authority under Article 6 of the Convention stating that service was effected than it is to a private process server’s affidavit.

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.

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