Case of the Day: Asarco v. Xstrata

The case of the day is Asarco LLC v. Xstrata plc (D. Utah 2013). The claim was for contribution under CERCLA. According to Xstrata’s characterization of the return of service, which for unclear reasons is not publicly available via PACER:

[t]he documents were served by posting them through the defendant company’s letterbox at the registered address of the company. This method is good service under Section 1139 of the Companies Act 2006.

But Xstrata’s characterization leaves out a key fact: according to Asarco’s brief, it wasn’t Asarco that mailed the papers—it was the UK central authority, after receiving Asarco’s request for service of process, that served the documents by mail and certified that it had made service under Article 6.

Asarco’s position is obviously correct. If the law of the state addressed permits service by mail, then of course that state’s central authority can serve the documents by mail. The judge agreed and denied the motion. Easy case.

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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