Case of the Day: Appel v. Hayut
Posted on December 23, 2020
The case of the day is Appel v. Hayut (SDNY 2020). The plaintiff, Ronit Appel, served process on David Kazhdan, a defendant in Israel, by hiring Rimon Deliveries and Services, apparently an Israeli delivery company, which then mailed the documents to Kazhdan through the Israeli post. Just so that this is clear, the documents were mailed from Rimon, in Israel, to Kazhdan, in Israel. Thus this is not the ordinary postal channels case where the question is the sufficiency of mail sent from the United States to the state of destination.
The court correctly noted that Israel has not objected to service by mail under Article 10(a) of the Hague Service Convention, but I question whether this is a case of service by mail. The real question, I think, is whether Rimon is a competent person under Article 10(c). And the answer to that question is pretty plainly no in light of the Israeli declarations, which provide:
The State of Israel, in its quality as State of destination, will, in what concerns Article 10, paragraphs b) and c), of the Convention, effect the service of judicial documents only through the Directorate of Courts, and only where an application for such service emanates from a judicial authority or from the diplomatic or consular representation of a Contracting State.
So I think the judge missed the boat from the beginning. The judge’s discussion about FRCP 4(f)(2)(A), which authorizes mail if authorized by the law of the state of destination, seems to me beside the point.
I think this case is noteworthy because it is so unusual. Now Kazhdan faces the strategic questions often faced by defendants who have received faulty service. How to respond? Run silent, run deep? Should a lawyer appear on his behalf at all, or is it better to wait and argue later that the eventual judgment is void? All challenging questions.