Case of the Day: Cabrera v. Kosan Crisplant

The case of the day is Cabrera v. Kosan Crisplant A/S (S.D. Tex. 2016). Much confusion is in the air. Roberto Cabrera brought a product liability suit against Kaya Baskül, a Turkish company, following a propane fire and explosion in Conroe, Texas. The decision is a little confusing, because it refers to an attempt in 2014 to serve process on Kaya by service of the summons and First Amended Complaint on the Texas Secretary of State, which then sent the documents by registered mail to the Turkish central authority. The Secretary of State indicated that no response had been received. In fact, Cabrera went on to serve process on Kaya directly via the central authority mechanism in February 2016. As far as I can tell, the court should have referred to the latter service.

Kaya then filed a pro se response to the complaint, in the form of a letter, that raised various objections. The court thought that the response was accompanied by “what appears to be a translated copy of the Hague Convention’s service requirements with an unreadable signature.” Having looked at the document, I’m not sure why the court thought this. In any event, once Kaya appeared, Cabrera pounced, arguing, correctly, that Kaya could not appear before the court pro se but only through counsel, and also arguing that its answer constituted a general appearance and that Kaya had therefore submitted to the jurisdiction of the court. The court, reading the letter charitably, construed the letter as a motion to dismiss on jurisdictional grounds, which does not qualify as a general appearance.

The bit about the treatment of the letter as a general appearance is why I am noting the case. It gives me a chance to repeat one of my favorite pieces of advice. If you’re a foreign litigant, your response to a US lawsuit, if jurisdiction or service of process is in question, really should depend on your intention if the US court were to decide the jurisdictional or service question against you. If you would defend the case in those circumstances, then hire a lawyer and make your arguments. But if you would take a default judgment, then run silent, run deep. You will want to preserve your ability to argue, in your local court, that the US judgment is void for want of jurisdiction. You likely give up those arguments by litigating the jurisdictional questions here. (And on the service of process front, if you hire a US lawyer to raise your objections—that’s not what happened in this case—you create an opportunity for the plaintiff to obtain leave to serve process on you via your lawyer in the United States).

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. 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 treatise on International Aspects of US Litigation (J. Berger, ed. 2017), 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 and 2014 - 2016.

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