Case of the Day: Fisher v. Petr Konchalovsky Foundation
Posted on March 22, 2016
The case of the day is Fisher v. Petr Konchalovsky Foundation (S.D.N.Y. 2016). Fisher owns a painting that he claims is Still Life with Grinder, by Russian artist Petr Petrovich Konchalovsky. Fisher’s claim was that the Foundation, based in Moscow, had wrongfully declared the painting to be inauthentic. Fisher sought leave under FRCP 4(f)(3) to serve process on the Foundation by mail, but the judge denied the motion on the grounds that although Russia has unilaterally suspended compliance with the Hague Service Convention for requests for service emanating from the United States, it has nevertheless objected to service by postal channels. Its refusal to honor the treaty does not override its objections to service by postal channels under Article 10(a).
Fisher then sought leave under FRCP 4(f)(3) to serve process by email. My perspective on this should be familiar. Service has to be by a method authorized by the Hague Service Convention. You’re not going to allow service by mail because Russia objected to service by mail under the Convention—fine. Should you allow service by email? Well, what provision of the Convention authorizes it or even permits it? The answer, none, except possibly Article 10(a), the article on service by postal channels, but the whole reason we’re in this mess is because Russia does not allow service under Article 10(a).
But as longtime readers know, this analysis has not proved persuasive to very many American courts. Indeed, there are so many district court decisions to choose from that when granting Fisher’s motion, the judge did not even have to cite the leading case, Gurung v. Malhotra. Sigh.