Case of the Day: Senah, Inc. v. Xi’an Forstar S&T Co.

The case of the day is Senah, Inc. v. Xi’an Forstar S&T Co. (N.D. Cal. 2014). Senah had sued Xi’an but had voluntarily dismissed the action in order to start over and serve Xi’an with process in accordance with the Hague Service Convention.

The decision doesn’t explain precisely why it was necessary to start over. In any case, Xi’an sought the costs of the first action under FRCP 41(d), which provides:

If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied.

The judge disagreed. True, as Xi’an argued, Senah probably could have made valid service in the first action rather than starting from scratch, but it had not acted vexatiously. Additionally, as Senah pointed out, because both actions were filed in the same district, it’s not as though a new judge would have to start from scratch. This is a sensible and practical decision.

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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