Case of the Day: Armadillo Distribution v. Hai Yun Musical Instruments

The case of the day is Armadillo Distribution Enterprises, Inc. v. Hai Yun Musical Instruments Manufacture Co. (M.D. Fla. 2013). The claim was that Hai Yun had sold Armadillo defective musical instruments. Armadillo sought to serve process on Hai Yun, a Chinese firm, via the Chinese central authority. The central authority returned a certificate under Article 6 of the Hague Service Convention indicating that Hai Yun had been served with process in accordance with Chinese law.

After Hai Yun failed to answer the complaint, the clerk entered its default. Hai Yun then moved to set aside the default. The court granted the motion, which I think was permissible and maybe even the right thing to do in light of the policy in favor of resolution of cases on the merits. However, because the fact that service had been effected was never in dispute, I was struck by the court’s conclusion that “Hai Yun’s failure to respond to Armadillo’s complaint was not willful, and was indeed excusable, given the difficult nature of effecting service on a foreign entity and the unexplained delay in returning the Hague Certificate of Service in this case.” What does this mean? It’s difficult to see how the difficulty of making service has anything to do with whether a failure to answer is excusable.

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 2012), 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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