The case of the day is Automobile Lamborghini S.p.A. v. Garcia (E.D. Va. 2020). The claim was that Garcia had been selling counterfeit Lamborghini goods on the internet. Garcia and his lawyer were communicating with the plaintiff’s lawyers, so they were aware of the lawsuit, but efforts to serve Garcia in Argentina via the central authority mechanism failed when, after a year, the Argentine authorities attempted service at Garcia’s known address, only to find it was vacant and under construction. Lamborghini then sought and obtained leave to serve process via email (Argentina objects to service by alternate means under Article 10 of the Service Convention). After the email was sent, Garcia entered an appearance and moved to dismiss; his initial motion to dismiss did not argue insufficient service of process. The court denied the motion to dismiss. The plaintiff filed a first amended complaint, and Garcia failed to answer it. Lamborghini moved for entry of default judgment, and the magistrate judge recommended that the motion be granted.
The court adopted the magistrate judge’s report. The judge emphasized that Lamborghini’s diligence and the long period of time in which it had sought, unsuccessfully, to effect service “the right way” justified the decision to grant leave to serve the documents by email: “Several district courts have permitted service by email under Rule 4(f)(3) after attempts to effect service under the Hague Convention were unsuccessful. Precisely this occurred here.” This approach, while understandable, is not correct. If the Service Convention bars a method of service, then the plaintiffs’ diligence in trying to serve through the main channel, or the length of time that has passed, does not convert a faulty method of service into a good one. There was, however, alternate reasoning that would have more than justified the court’s decision. It was clear, after the failed service attempt, that Garcia’s address was unknown. Thus under Article 1 of the Convention, the Convention simply did not apply, and there was, therefore, no barrier to service by email.