The case of the day is Title Trading Services USA, Inc. v. Kundu (W.D.N.C. 2014). The claim was for misappropriation of intellectual property. The defendant, Arindam Kundu, who resided in India, moved to dismiss for insufficient service of process, and the plaintiff, Title Trading Services USA, moved for leave to serve Kundu via email and via service on his US lawyer.
The judge correctly and uncontroversially granted the motion for leave to serve process on Kundu via his US counsel. Service on counsel in the US doesn’t implicate the Service Convention, since no transmission of a judicial document outside the United States is required. But the judge fell into the trap of Gurung v. Malhotra and taken the view that since the Convention does not expressly forbid service by email, it permits it. No! I’ve said it before, and I’ll say it again. If service by email is not within the scope of service via the postal channel, then there is no provision of the Convention that permits it. And if service by email is within the scope of service via the postal channel, then India’s objection to service under Article 10(a) makes service by email impermissible in India.
I’m not going to repeat everything there is to say about this issue. Interested readers may want to take a look at my paper, Gurung v. Malhotra is Wrongly Decided.