The case of the day is SEC v. Craven (W.D. Ky. 2015). The SEC had a judgment for $5.3 million against Anna Craven in the Southern District of New York. Craven resided in Switzerland but had property in Kentucky. Under FRCP 69, Kentucky law governed the procedure for execution of a money judgment, and Kentucky law required the judgment creditor to “send to the last known address of the judgment debtor — by regular first class mail — a copy of the notice of judgment lien.” The SEC sought leave to serve the notice by email under FRCP 4(f)(3).
There are two points of interest. First, the decision is yet another in the long line of cases allowing service by email when the Convention applies, even if the destination state has made an Article 10(a) objection. At some point, I am going to write to the publisher of the forthcoming ABA treatise on International Aspects of US Civil Litigation—I wrote the chapter on service of process—and ask for a chance to revise the chapter before publication. At the time I wrote it, which was a long time ago now, there was still an argument to be made that despite Gurung v. Malhotra and a couple of other cases, the Convention should be construed to forbid service by email, at least in states with Article 10(a) objections. But as the long string-cite in today’s case shows, it seems that for the US district courts, at least, the ship has sailed. We dearly need an appellate decision on this in order to set things right.
There is, though, another point of interest. The SEC, and the court, apparently took the view that the notice had to be served under the Convention even though it is not process in the strict sense. I have gone back and forth on this issue. I wonder, though, whether the SEC needed to bring a motion at all: could it not just have mailed the documents directly to Craven?