Case of the Day: Smith v. Wolf Performance Ammunition

The case of the day is Smith v. Wolf Performance Ammunition (D. Nev. 2015). Andrew Smith alleged that he was injured when, in 2012, “the firearm and ammunition he was using exploded in his face.” He sued Sporting Supplies International, apparently the merchant from whom he bought the allegedly defective ammunition. SSI impleaded Tula Cartridge Works, a Russian corporation, claiming Tula was liable to it for contribution and indemnification. SSI sought leave under FRCP 4(f)(3) to serve process by alternate means on Tula, noting Russia’s unilateral refusal to execute requests under the Hague Service Convention originating in the United States. In particular, SSI sought leave to serve process by mail and by email. Russia has objected to service under Article 10 of the Convention.

Long-time readers know my views on this question. See this post for a brief discussion of the implications of Russia’s refusal to execute US requests for service for Russia’s Article 10 objections, and my paper on the issue of service by email where the defendant’s address is known (as apparently it was in this case).

Unfortunately, the judge erroneously granted the motion. But Tula didn’t do itself any favors. According to the judge, it did “not claim that service by international express mail and e-mail violate international law.” Tula conceded too much: in light of Russia’s Article 10 objections, and the exclusive nature of the Service Convention in cases where it applies, it’s my view that international law does prohibit service by postal channels or email in Russia. So the decision should not be followed.

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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