Case of the Day: Doe v. d’Espalungue d’Arros

Scene of the Boston Tea Party
Letters Blogatory wishes readers a happy Independence Day! 2023 is the 250th anniversary of the Boston Tea Party, one of the key events that led to Independence.

The case of the day is Doe v. d’Espalungue d’Arros (W.D. La. 2023). The claims in the case arose out of an alleged sexual assault at a church retreat organized by the “Ragin’ Cajun Catholics,” the college ministry of Our Lady of Wisdom Catholic Church at the University of Louisiana at Lafayette. The defendant, Edouard d’Espalungue d’Arros, was in France. The plaintiff hired a service vendor and sought to serve process via the Central Authority. The Central Authority sent back an Article 6 certificate indicating that service had not been effected because the defendant had refused to go to the police station to receive the documents.

Parenthetically, it might have been better to retain a huissier to serve the documents under French law. France has not objected to service under Article 10. The benefit of hiring a huissier rather than leaving service to the French government is that the person you hire will care about your case in a way the French government will not. It’s the same reason a foreign litigant will want to hire a US lawyer to bring a Section 1782 application rather than sending an Evidence Convention request to the US Central Authority. Also, a huissier typically will serve process faster than the Central Authority.

Anyway, a year or more had passed, and the plaintiff, based on some bad advice from the service of process vendor, took the position that they could seek a default judgment in light of Article 15 of the Service Convention, which provides:

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that –

  1. a)  the document was served by a method prescribed by the internal law of the State addressed forthe service of documents in domestic actions upon persons who are within its territory, or
  2. b)  the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,
    and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled –

  1. a)  the document was transmitted by one of the methods provided for in this Convention,
  2. b)  a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,
  3. c)  no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

Why was the advice bad? Because the point of Article 15 is not to allow a default judgment whenever service hasn’t been effected within six months, but when the absence of any communication from the foreign central authority makes it reasonable to assume that the process was served and that the confirmation simply never reached the plaintiff. Here, though, we know that the process was not served, because the Central Authority sent a certificate that says so. Article 15 permits a default only when no certificate of any kind has been received, which obviously wasn’t the case here. For this reason, the court denied the plaintiff’s motion for a default judgment.

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