The case of the day is Habas Sinai Ve Tibbi Gazlar Istihsal A.S. v. International Technology & Knowledge Co. (W.D. Pa. 2019). The claim was on a sales contract: Habas Sinai claimed that ITK and Intekno Teknoloji Transfer Sanayi Ve Ticaret A.S. failed to deliver goods as agreed, requiring Habas Sinai to buy replacements at a higher cost. INK was a Pennsylvania corporation, but its CEO, Halil Kulluk, was in Turkey. Habas Sinai moved for leave to serve process on INK via email sent to Kulluk.
I don’t want to dwell on the strange facts. I don’t know Pennsylvania law, but I hazard a guess that there is a foolproof method of serving a domestic corporation under state law when all else fails, e.g., by service on the secretary of state or something. But I am glad Habas Sinai tried what it tried, because it led to a decision I really like.
Turkey is a party to the Hague Service Convention, and it has objected to service under Article 10(a). The judge reasoned, correctly, that a failure to object specifically to service by email does not make service by email permissible under the Convention. Quoting Luxottica, the court held: “Because email would bypass the methods of service the Hague Convention authorizes, the Convention preempts it as inconsistent.”
It is probably too soon to hope for the death of Gurung, but 2019 will be remembered (by the small fellowship of folks who care about this issue—I’m looking at you, Brody Warren) as the year the courts finally began to recognize the error of Gurung v. Malhotra and its progeny.