Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Case of the Day: ISPEC, Inc. v. Tex R.L. Industrial, Inc.

The case of the day is ISPEC, Inc. v. Tex R.L. Industrial, Inc. (D.N.J. 2014). ISPEC served process on Tex R.L. in Taiwan by Fedex, by email to its US counsel, and by a local process server, who served the summons on an unidentified employee of Tex R.L. in Taipei. On the basis of this service, ISPEC obtained a default judgment, and Tex R.L. moved to vacate.

Taiwan is not a party to the Hague Service Convention. ISPEC did not seek leave to make service by alternate means under FRCP 4(f)(3), nor did it arrange for a letter rogatory to a Taiwanese court such that FRCP 4(f)(2)(B) could be in play. So the question was whether one or more prongs of FRCP 4(f)(2)(A) or (C) supported the service.

Rule 4(f)(2)(C) was a non-starter. Personal service is not an available method of service on a foreign corporate defendant, and the service by Fedex failed to satisfy FRCP 4(f)(2)(C)(ii) because the package was sent by ISPEC, not the clerk.

Nor did the service comply with Taiwan domestic law so as to satisfy FRCP 4(f)(2)(A). Under Article 123 of the Taiwan Code of Civil Procedure, service generally must be effected by the clerk, and ISPEC made no request to the clerk.

The judge, therefore, correctly vacated the default judgment.

Ted Folkman
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2 responses to “Case of the Day: ISPEC, Inc. v. Tex R.L. Industrial, Inc.”

  1. Jungsup Kim

    I am an attorney for the plaintiff, ISPEC, Inc. Theoretically it’s easy to say the service method should have been the foreign mailing by Clerk of Court pursuant to the FRCP rules, but practically it is extremely tough because U.S. registered mail service with return receipt is not available in Taiwan. Therefore, letter rogatory seems to be only way to resolve the inefficiency of service matter, but it is extremely expensive and time-consuming. By the way, now plaintiff is trying to re-serve by using every possible service methods under the permission of the Court. See what happens. …

    Reply
    1. Ted Folkman

      Thank you for the comment. Why not try service by Fedex again, but with the clerk transmitting the documents? Or else why not bring a motion under FRCP 4(f)(3) for leave to serve by Fedex or by mail without requiring the documents to be sent by the clerk? There seem to be options here.

      Reply

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