Case of the Day: Walton v. Bilisnki

The case of the day is Walton v. Bilinski (E.D. Mo. 2015). The plaintiff, Cody Walton, alleged that he was sexually assaulted by another inmate when he was being held in the Macon County, Missouri jail in pretrial detention. He sued Ryszard Bilinski, a former Macon County deputy sheriff, alleging a constitutional violation because Bilinski, he claimed, “failed to properly secure the inmates in their cells on the night of the assault.” At the time of the suit, Bilinski lived in Alberta, Canada.

Walton sought to server process by delivering the summons and complaint to Bilinski’s wife at their home, by leaving the summons and complaint taped to Bilinski’s door, and by emailing Bilinski’s lawyers the documents. Bilinski moved to dismiss.

Preliminarily, you might say to someone in Walton’s position (or more accurately, to his lawyers): “if you’ve having trouble serving process in a Convention state, when in doubt, use the central authority!” But that’s not what Walton did, and so the question was whether or not the methods of service he did use were valid. Canada has not objected to service under Article 10.

The court found that the service was insufficient because it did not comply with the requirements of Alberta law (which I’ll assume was the case). The point that’s of interest is the court’s assertion that when judging the validity of service made under Article 10(b) of the Convention (the court focused on Article 10(b) rather than 10(c) for reasons that are unclear to me), you look to the law of the state where the service is to be made to determine its validity. This seems to be a clear methodological error. The question is whether the method of service satisfies the requirements of the law of the forum. Now, to be sure, FRCP 4(f)(2)(A) incorporates the law of the forum state and makes service abroad effective if made using a method permissible under the applicable forum law. But FRCP 4(f)(2)(C) allows for service by personal delivery and service by mail unless prohibited by the foreign law. So it would be a mistake to look, for example, at the Alberta Rules of Civil Procedure to judge the validity of service by mail—unless those Rules actually forbade service by mail.

The court makes another mistake—it adopts the incorrect minority position that service by mail is never permissible under Article 10(a). But I have made that point many times before and will not provide a full explanation here.

In the end the court gave Walton another opportunity to effect service. My advice: when in doubt, use the central authority!

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.

Leave a Reply

Your email address will not be published. Required fields are marked *