Case of the Day: Kelly v. Vesnaver
Posted on April 24, 2017
The case of the day is Kelly v. Vesnaver (E.D.N.Y. 2017). The case involved a dispute about alleged conversion and breach of fiduciary duty relating to the plaintiff’s Chinese bonds. The plaintiff served process by delivering the documents to a PO box at a UPS Store in Florida. Several of the defendants were residents of the UK, and they moved to quash the service of process. The plaintiff claimed that one of the defendants (an American) had, in an email, authorized the plaintiff to serve process on all of the defendants at the UPS Store, though this was disputed.
The judge got off to a bad start: “As an initial matter,” he wrote, “the Court notes that Plaintiff fails to establish, as a matter of law, that service on an authorized agent is permissible under the Hague Convention.” The problem with this line of thought, of course, is that the Convention only applies when there is occasion to transmit a judicial document for service abroad. If the UK defendant had authorized the service on a US agent, then there would have been no such occasion, and the Convention simply wouldn’t apply. Another way of saying this is that the Convention is not mandatory. It’s up to the law of the forum to determine whether service abroad is required, so the judge’s reasoning was circular. That being said, the judge found, apparently correctly, that the email could not be read to authorize service on the UK defendant at the UPS Store.
The case is correctly decided, but the judge’s doubts about whether the Convention permits service on a foreign defendant within the United States should not be followed. The question whether service by delivery of the documents to someone in the United States is effective as to a foreign defendant is a question for the law of the forum, and the Convention does not govern it.