Case of the Day: Regenicin v. Lonza Walkersville, Inc.

The case of the Day is Regenicin, Inc. v. Lonza Walkersville, Inc., (N.D. Ga. 2014). Regenicin sued Lonza Walkersville for breach of contract, tortious interference, and other business torts. Regencin sought leave to effect service on one of the defendants, Lonza Group, Ltd., in Switzerland under the Hague Service Convention. You might say, “a plaintiff doesn’t need to seek leave to invoke the Convention,” and you would be right, but Regenicin’s motion was actually a bit more ambitious: Regenicin sought leave to serve the documents via the Convention, but without having to translate the exhibits, which were voluminous. Article 5 permits the central authority to require translations.

We have seen suggestions like this before. In particular, it’s been suggested that in jurisdictions that require only service of a summons to initiate an action, you can serve the summons via the Convention, with a translation, and then serve later documents without worrying about compliance with the Convention. I don’t agree with that position, but it has some logic, especially in light of cases such as Willhite v. Rodriguez-Cera. But Regenicin’s approach is even less plausible, since there was no argument that the exhibits did not form part of the complaint or that it was not necessary to serve the complaint on the defendant in order to initiate the action.

In a way, the strangest thing about this case is that even if the judge had wrongly authorized Regenicin to attempt service via the Swiss central authority without a translation, the central authority most likely would have refused to effect service without a translation.

The judge also considered Regenicin’s request to set a time by which service had to be completed. Surveying the various approaches taken by the circuits and finding no controlling authority in the Eleventh Circuit, the judge adopted a due diligence requirement.

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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