Case of the Day: KG Marine v. Vicem Yat Sanayi Ve Ticaret

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The case of the day is KG Marine, LLC v. Vicem Yat Sanayi Ve Ticaret A.S. (W.D.N.Y. 2014). KG’s claim against Vicem Yat, a Turkish firm, was for breach of contract, breach of warranty, and fraud. KG moved for leave to serve Vicem by alternate means under FRCP 4(f)(3) without first seeking to serve process via the Turkish central authority.

The judge refused leave because KG had not even attempted service via the central authority. FRCP 4(f)(3) is a discretionary rule, and I believe the judge’s decision was within her discretion, but I don’t think it’s the best rule. The judge recognized that “there is no hierarchy among the subsections in Rule 4(f) and that Rule 4(f)(3) stands independently, on equal footing, with Rule 4(f)(1).” That being the case, what is the justification, really, for her choice not to permit service by alternate means? Why not let the plaintiff decide the most advantageous way to serve process? A simple FRCP 4(f)(3) motion is hardly a strain on the court’s docket, I should think.

I don’t ordinarily name judges except to praise them, but in this case, I am going to name the judge as a practice pointer for lawyers with cases before her, so that they avoid bringing a motion she disfavors. The judge was Elizabeth A. Wolford. Again, I’m not saying she got this wrong, I’m just saying that I think she has chosen a suboptimal rule.

One last, very minor, point. The judge noted that KG had failed to pursue other methods of service under FRCP 4(f)(1) or 4(f)(2). But in a Hague Service Convention case (with maybe some very rare exceptions), FRCP 4(f)(2) is not, because FRCP 4(f)(2) applies only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means.” The Hague Service Convention is exclusive, so there are no means that it allows but does not specify. Contrast this with the Inter-American Convention, which is non-exclusive and which, therefore, may allow unspecified means.

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 2012), 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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