Smith v. Johansen: Service by Drone?

MQ-9 Reaper
A new tool for service of process?
The case of the day is Smith v. Johansen (D. Mass. 2013). The underlying facts are prosaic and unimportant: Alonzo Smith, the owner of a company that manufactures long-range unmanned aerial vehicles, or “drones,” for both military and civilian purposes (more on that in a minute), had lent money to Einar Johansen, a geologist and a Norwegian national, in 2010, when Johansen was a visiting scholar at Harvard. Johansen failed to pay, and Smith sued on the promissory note. Norway is a party to the Hague Service Convention, and so Smith made a request to the Norwegian central authority under Article 5 of the Convention. The central authority sent back a highly unusual response. Apparently Johansen was engaged in a long-term study of climate change and was making his permanent home on a northern Norwegian island in the Barents Sea, perhaps 50 km north of the northernmost town. Johansen’s cabin was nestled deep in a fjord, and he—an expert climber—was able to leave his valley once or twice a year, kayak along the coast for a week to the nearest town, and then catch a flight to Oslo to visit family and bring his latest data back to the university. But the Royal Ministry of Justice and Public Security had no one on hand who could safely make the trip.

Smith sought leave to make service by alternate means. His motion was highly unusual, to say the least. He asked the court for leave to make an air-drop of the documents over Johansen’s cabin, using his firm’s long-range “polar explorer” drone and a special attachment that he had previously tried to sell to the Air Force that allowed for precision guided air-drops. Since no human being would be on hand to attest to the service, the drone would circle the cabin and take photographs using special high-resolution cameras once Johansen came out to collect the package. Smith even presented a letter from the Norwegian embassy indicating that Norway had no objection.

The judge denied the motion. This was perhaps unsurprising given how unorthodox Smith’s suggestion was. But interestingly, the judge did not object to the method of service itself—he seemed to find it fascinating and suggested it could be used in a proper case. The trouble, he wrote, was that given Johansen’s isolation, it wouldn’t be possible for him to answer the complaint within the time permitted by the rules. The judge, therefore, suggested that Smith should propose a method of landing a drone in the fjord so as to enable Johansen to put his answer or motion to dismiss on board for the return trip to the United States. Time will tell whether Smith can come up with a workable solution to what otherwise seems like a clear denial of due process.

Update (4/2/13):As you may have guessed, this was an April Fools post. So don’t cite it!

Photo credit: Paul Ridgeway

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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