Case of the Day: Calista Enterprises v. Tenza Trading

The case of the day is Calista Enterprises, Ltd. v. Tenza Trading, Ltd. (D. Or. 2014). Calista, a Seychelles company, sued Tenza Trading, a Cyprus company, and Tenza brought a counterclaim against Calista and Alexander Zhukov, who it alleged was Calista’s alter ego. Zhukov resided in the Czech Republic, but he had an address in Russia as well. Tenza moved under FRCP 4(f)(3) for leave to make service on Zhukov by alternate means, namely by email, by service on his US lawyers, and by mail to his home in the Czech Republic and to his address in Russia.

The judge correctly authorized service on Zukhov’s US lawyers, which of course does not implicate the Service Convention. He correctly denied leave to serve process by mail in the Czech Republic, which is a party to the Convention and which has objected to service via the postal channel.

There were two interesting points in the decision. The judge hinted that service by mail in Russia might not be forbidden by the Convention in light of Russia’s unilateral refusal to execute requests for service of process from the United States. I’ve noted this point before:

The fact of the matter is that Russia’s refusal to honor the treaty does not make permissible what the Convention makes impermissible. I don’t know enough public international law to know what would have to happen to change this analysis: certainly Russia has not withdrawn from the Convention.

But the judge didn’t have to face this problem head-on, because he held that there was a question of due process, as Zhukov did not live in Russia and might not receive the mailing.

The other interesting point was the request to serve by email. The judge refused to grant leave because the propriety of the service would depend on the country where the “server for is located, as that is where service would be complete.” Now, the judge was certainly right to refuse leave to serve by email, but his reasoning is dubious. When we discuss email, we have to be specific about the technology. Are we talking about the server that runs the mail transfer agent that receives the email over the internet? Or are we talking about the server that runs the mail delivery agent that delivers the email to the mailbox of the recipient? Or are we talking about the computer to which the MDA delivers the email? Or, in the case of webmail, are we talking about the server that hosts the webmail application, or the computer the defendant uses to access the webmail application?

In general, it seems to me that the policies of the Convention suggest that we should look to the place where the defendant retrieves or reads the email rather than to a server earlier in the chain. But that’s probably a subject for a longer post.

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