Case of the Day: Lexmark International v. Ink Technologies Printer Supplies

The case of the day is Lexmark International, Inc. v. Ink Technologies Printer Supplies, LLC (S.D. Ohio 2013). The plaintiff sought leave to serve defendants in China and Germany via email. The judge noted that both China and Germany are parties to the Hague Service Convention. The judge granted the motion. He did not analyze the Convention in any detail, beyond noting that “Email service has been approved even where, as here, the country objects to Article 10 of the Hague Convention.” And for that proposition, he cited the two worst cases ever, Gurung v. Malhotra and FTC v. PCCare247. I mean, really!

It seems to me that one problem with a decision like this—beyond being flat-out wrong—is that it is decided on an ex parte basis, without any opposition. That’s not to excuse the sloppiness of judges who don’t stop to ask themselves what provision of the Convention authorizes the method of service they are so liberally permitting. But it’s understandable that a judge would follow a case such as Gurung when no one is there to explain why Gurung was obviously wrongly decided.

I want to end all of my posts from now on as follows: “Furthermore, it is my opinion that Gurung v. Malhotra must be repudiated.”

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.

2 thoughts on “Case of the Day: Lexmark International v. Ink Technologies Printer Supplies

  1. Lexmark violates the rights of the consumer. By purchasing Lexmark printer I paid toner and have the right to print blue and red and the device should perform their functions in the absence toner. But the device Lexmark printers so that, at completion of the one color toner unit just turns into scrap metal—is dupery! Why did not anyone sue for consumer rights?

  2. In December 2013, the court compounded its error by permitting service by email on another defendant, this time in Poland. Poland, like China, has objected to service by postal channels.

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