Case of the Day: Baikowitz v. Jacobson

Happy New Year 2024

Happy new year!

The case of the day is Baikowitz v. Jacobson (N.Y. Sup. Ct. 2023). Baikowitz, the curator of his father’s property, sued Jacobson in Montreal seeking to recover $750,000, which he said his father had invested in several of Jacobson’s projects, on the grounds that his father had been mentally impaired when he made the investments. He received a default judgment in the Québec court and sought recognition and enforcement in New York. Jacobson moved to dismiss, arguing that the Québec court had lacked personal jurisdiction.

According to the return of service, a process server delivered the papers to an unnamed person at Jacobson’s place of business in New York, who stated that he was authorized to accept service on Jacobson’s behalf. The court rejected the service and refused to recognize the judgment.

The court began somewhat dubiously by stating that “In the United States, the methods prescribed for service on an individual under the Hague Convention are set forth in rule 4(e)(1) and (2) of the Federal Rules of Civil Procedure.” The main reason I say this is dubious is that the first question courts should ask when someone challenges a foreign court’s personal jurisdiction is: does the case meet the requirements of Section 5 of the UFCMJRA (or in this case, the New York equivalent, CPLR § 5305, which provides that a court cannot refuse recognition on personal jurisdiction grounds if process in the foreign case was served using one of the methods the Act mentions (for instance, personal service in the foreign state, or domicile in the foreign state). If, as in this case, none of those methods applies, the second question is: should the court exercise its discretion under the Act to recognize the judgment on the basis of personal jurisdiction acquired in another way? And nothing in that section of the Act suggests that the courts shouldn’t recognize a judgment unless the service complies with a particular rule of civil procedure.

I’ll give you an example. Suppose (as seems to be the case, according to the decision) that New York allows service by leaving the papers at a defendant’s place of work, but only if the papers are then sent by mail, but Québec law allows such service without requiring mailing. The Québec court obviously thought the service was sufficient. As long as the recognizing court thinks the requirements of due process have been met—a question the court didn’t reach—why should service that met the foreign court’s requirements not be okay?

There is a real point here that the court maybe was getting at. The Service Convention is exclusive, which means that when you have a lawsuit in Canada and the defendant is in the United States, you have to serve the Canadian papers on the defendant via a method that the Convention authorizes or at least permits. That’s presumably why the court focused on the question of which methods of service the Convention permits when a plaintiff in a foreign action serves process in the United States. But the relevant provisions of the Convention, Article 10(b) and (c), don’t specify any particular method of service. They merely say that the process can be transmitted by a competent person or an interested person in the state of origin to a competent person in the state of destination, who then can serve the documents. That clearly happened here, because the private process server who served the papers in New York is a competent person under US law. Contrast Article 5, the provision governing transmission via the central authority. Article 5 also doesn’t specify any particular method of service; it says that once the papers are transmitted, the central authority has to arrange for the service to be effected in accordance with the law of the state of destination, or else in accordance with a special method requested by the applicant. There is nothing like that in Article 10. So while I haven’t studied the New York cases on the question, I don’t think there is a real basis for saying that only service that complies with FRCP 4(e)(1) or (2) can satisfy the requirements of Article 10 of the Convention.

Of course, the court is within its rights to say that the service wasn’t clear or persuasive enough to satisfy it. But if it reaches that answer, it should be because the courts had real concerns about whether the defendant had notice and an opportunity to defend, not because the service failed technically to comply with the Federal Rules of Civil Procedure.

Image credit: Marco Verch (CC BY)

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