Case of the Day: Carson v. Griffin

The case of the day is Carson v. Griffin (N.D. Cal. 2013). Fletcher Carson sued several defendants, including Walsh Griffin, Walsh Capital Group, Ivan Ahmed Azziz, Daniel Okwudili Nwankwo, Cisse Abdoulaye, and Ben Aka, on a variety of claims. I don’t attempt to summarize the claims of the pro se complaint. Griffin and Walsh Capital Group were located in Ireland. The others were in Dubai. Carson attempted to serve each of these defendants via email using RPost’s service. You may remember RPost from the case of the day of February 7, 2012, in which RPost was the plaintiff and used its own email technology to effect service. As in the earlier case, Carson did not know the addresses of the foreign defendants, and so the Hague Service Convention did not apply to his attempts at service in Ireland (the UAE is not a party to the Convention in any case).

Carson first sought leave to serve Azziz by email using an email address that he had previously used in corresponding with Azziz. Apparently he sought leave after sending the email—long-time readers know that I think motions for leave to make service by alternate means should come before you effect the service. In any case, the judge rejected his first attempt on the grounds that Carson had not “explicitly state[d]” that he had previously corresponded with Azziz at that address and on theg rounds that the “receipt authentication document” had a field labeled “opened,” but that field was blank. On his second attempt, Carson explained that he had corresponded with Azziz hundreds of times at the address in question, which satisfied the judge. He also provided some additional details about RPost’s service:

There is a delay after the email is sent and before the receipt authentication is sent back to the sender. If the email is opened within that delay period, the “opened” column will indicate that the email has been opened. Otherwise, the “opened” column will be be blank. The system does not continue to query the recipient to determine whether the email is later opened.

The judge was satisfied with this explanation, too, though I’m not sure why. It obviously was important to the judge to know whether the email had been opened (it’s not obvious that the judge’s concern was well-founded, since there’s a case to be made that what should matter is receipt of the email, not whether the defendant actually opens the email). But Carson’s explanation doesn’t show that the email ever was opened. In any event, the judge deemed that Azziz had been served.

The judge rejected Carson’s attempts at service on Nwankwo, Abdoulaye, and Aka, whom he attempted to serve at Azziz’s email address, on the grounds that he had not shown that he had ever communicated with them at that address and it was unclear that they would receive notice of the proceedings.

Finally, the judge granted Carson’s motion with respect to service on Griffin and Walsh Capital. Carson explained that he had corresponded with Griffin many times using the relevant email address, and that the address he used for Walsh Capital was listed on the firm’s website. Interestingly, the judge did not seem concerned about whether Griffin or Walsh Capital had actually opened the emails, noting that “it is reasonable to assume that a business checks, or ought to check, an email address that is listed on its website.”

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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