Case of the Day: Carrillo v. Black Diamond Equipment

A black diamond ski hill in Switzerland

The case of the day is Carillo v. Black Diamond Equipment, Ltd. (D. Wyo. 2023). The case was a wrongful death action based on an allegation that the decedent was lost after a ski accident and that his “avalanche beacon” was defectively designed. The plaintiff filed the case in the Teton County (Wyoming) District Court, and one of the defendants, Black Diamond Equipment, Ltd., removed the case to the U.S. District Court for the District of Wyoming on the basis of diversity. The plaintiff sought leave to serve process on two of the foreign defendants, PIEPS Canada (located in Canada) and PIEPS GmbH (located in Austria) by email. The judge granted the motion. The decision was certainly erroneous as to Astria and possibly erroneous as to Canada for reasons that will be familiar to long-time readers and that aren’t the point of this post.

The case is not particularly unusual. I picked it out because of the following line from the Court’s decision:

Plaintiff inquired into service of the Defendants under the Haque Convention and have discovered that service would take five or more months and could cost in excess of $4,000. 

“Come again? Four thousand dollars to serve two defendants, both of whose addresses are presumably known, in Canada and Austria?” That’s a pretty typical question for US lawyers to ask someone who’s just quoted a price on a service project. Now, I’m not writing about myself, because I don’t generally accept engagements related just to service of process abroad for a number of reasons. I usually refer people who ask to Aaron Lukken, who really knows what he is doing. But I think a reaction like this is pretty typical for folks who are looking for help with service.

The first thing to bear in mind is that some of the costs are probably out-of-pocket expenses, such as the cost of translations (which will be necessary at least in Austria). There are also incidental expenses for FedEx and the like. And depending on the method of service chosen in countries where you have options, you may be paying an out-of-pocket fee to a huissier or process server. So the lawyer’s fee is not necessarily the whole of the price quoted.

But folks should also think about how much time and effort it would take to do the work they are considering asking someone else to do. Could I serve process in Canada and Austria for without spending a lot of time? Sure. I do cross-border service often in my own cases. And because I have spent many years arranging for service of process abroad, thinking and writing about service, etc., I don’t need to spend time learning about the Service Convention, figuring out a good method of service in the circumstances of the case, and so forth. But could a hypothetical lawyer who has never had to serve process abroad and who has no background knowledge do it without taking a lot of time, without help? Maybe, but maybe not.

A lawyer’s fee has to be reasonable, which means it has to take account of the time spent as well as the difficulty of the work and the level of skill and experience of the lawyer. Service is a specialty area, a small specialty to be sure. What you are really paying for when you hire a lawyer to help you serve process in that case is the lawyer’s years of experience and knowledge, which you lack.

The point is just to emphasize that good advice isn’t cheap in any area of law, including service. So if you hire an expert to advise you on service process, it’ll cost you some money. That’s why it behoves you also to be sure that the person you’re hiring really is an expert. Lots of people sell service of process as a service. One question to ask is, “are you admitted to practice law?” You might sometimes be surprised by the answer.

Photo credit: Andres Passwirth (CC BY-SA 4.0).

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