Case of the Day: Lipenga v. Kambalame

The case of the day is Lipenga v. Kambalame (D. Md. 2015). Fairness Lipenga sued Jane N. Kambalame, a Malawian diplomat, alleging violations of the Victims of Trafficking and Violence Protection Reauthorization Act, the Fair Labor Standards Act, and Maryland wage and hours laws, as well as for false imprisonment, breach of contract, and other common law claims. The case, in other words, is similar in its broad outlines to Gurung v. Malhotra, 279 F.R.D. 215 (S.D.N.Y. 2011). Kambalame is presently the Malawian high commissioner in Zimbabwe. Lipenga sought to serve process on Kambalame at her personal address in Malawi but could not determine her address. It then sent a request for service to the Malawian central authority (Malawi is party to the Hague Service Convention), asking it to make service on her by serving the documents on the head of her government office.

This requires a bit of explanation. First, a Malawian statute provides: “Where the person to be served is in the Public Service, the Court shall serve him by sending the process to the Head of the Office.” Second, while in general plaintiffs use Article 5(a) of the Convention, which requests the central authority to make service “by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory,” here Lipenga used Article 5(b). Under Article 5(b), the request is for service “by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.” So full marks to the lawyers who dug up the Malawian statute. (I have it on good authority that the kudos should go to Lindsay Reimschussel and Anastasiya Ugale of Jones Day in Washington). Representatives of the Malawian central authority informally acknowledged, in writing, that the documents had been served. “Verily I assure you that service was effective,” the representative wrote. But the plaintiff never received an Article 6 certificate. Lipenga moved for entry of default and, in the alternative, for leave to serve process by email and Facebook.

The court denied the motion for entry of default on practical and prudential grounds: the communications from the Malawian central authority were informal, and it was not absolutely clear that Kambalame had received notice of the action. This seems reasonable.

Then (sigh) the judge went on to approve service by email and Facebook in light of FTC v. PCCare247, Inc. You know what I think about this. But while I don’t approve of the judge’s reasoning, I’ll make two points in mitigation. First, Malawi has not objected to service by postal channels, and so the impermissibility of service by email or Facebook is less clear than in countries that have made the Article 10(a) objection. Second, assuming Kambalame was physically in Zimbabwe rather than in Malawi, it seems to me that the outcome of the decision is right even if the reasoning is wrong. Zimbabwe is not a party to the Convention, and thus there is no bar to service by electronic means there.

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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