Case of the Day: Persh v. Petersen

The case of the day is Persh v. Petersen (S.D.N.Y. 2015). Neil Persh lived in New York, and Aldo Petersen lived in Denmark. The two were friends and business partners. Persh sued Petersen for breach of an oral contract, and Petersen moved to dismiss for insufficient service of process.

In support of the service of process, Persh filed an Article 6 certificate executed by the Danish central authority indicating that the documents had been served in accordance with Danish law on Petersen’s wife. Petersen argued that the service was nevertheless insufficient because lacked the requisite presentation of facts and law supporting [Plaintiff]’s claims, or a sufficient description of documents and evidence [Plaintiff] intends to rely on to support his claims,” as Danish law required. (Because the case was originally commenced in the New York Supreme Court, no complaint had been filed at the time of service, and so the only document served on Petersen was the summons. So Petersen’s point was not simply out in left field).

The court correctly rejected this argument on the grounds that the Article 6 certificate was prima facie evidence of service and that in any event Persh had made reasonable efforts to comply with the Convention and Petersen had actual notice of the proceedings. All true, and I am glad to see another case emphasizing the prima facie effect of Article 6 certificates. But it seems to me that the real issue in the case is that the sufficiency of the documents that are to be served—questions like “has the plaintiff served all the documents required?” or “are the contents of the documents served sufficient?”—are questions to be decided under the law of the forum, not under the law of the state where service is to be made. We have seen vaguely similar arguments arise before. For example, the Mexican central authority, for a time, refused to serve US summonses unless they specified that the defendant had 21 calendar days to answer the complaint. The German central authority, for a time, refused to serve US summonses in cases seeking punitive damages. Those cases were much stronger than Petersen’s case, because the relevant central authorities had actually refused to make service. If the German and Mexican central authorities were wrong to refuse to make service based on the substance of the documents to be served, then a fortiori, it seems to me, Petersen has no grounds for arguing insufficient service when the Danish central authority went ahead and served the document.

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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