The case of the day is Bunce v. Glock, Inc. (D. Vt. 2024). The case arose out of a tragedy: in 2021, the plaintiffs’ three-year-old son accidentally shot himself in the face with a Glock pistol. The claim was that the “product,” the gun, had been defectively designed. The defendants were Glock, Inc., a Georgia corporation, and Glock, Ges.m.b.H., an Austrian company. The plaintiffs sought leave to serve the Austrian company by service on the US company’s lawyers, who had previously also represented the Austrian company in other litigations. Glock, Inc. opposed the motion.

This procedural posture raises an interesting point. When a defendant thinks the plaintiff is not going to be able to effect service and is not willing to waive service, it is pretty sensible for the defendant not to appear. Once the defendant does appear, through a lawyer, then that lawyer is an easy and natural target for a motion for leave to serve by alternate means. Run silent, run deep. But then the defendant runs a risk of a default judgment and has to be pretty darn confident that the court would set the judgment aside as void.

Wouldn’t it be great if the defendant could have its cake and eat it too? If the defendant could avoid appearing, but someone else could oppose the plaintiff’s motion to effect service by alternate means? Despite the interest of the issue, the court decided to consider both the affidavit submitted by counsel for Glock, Inc. and his memorandum of law.

The court correctly recognized that the alternate service requested did not implicate the Service Convention, because it would not require transmission of a judicial document abroad for service. The next question was whether the alternate service comported with due process. Given the close relationship between Glock, Inc. and Glock Ges.m.b.H. (which owns 50% of its stock), and the prior attorney/client relationship between the lawyer whom the plaintiffs proposed to serve and the Austrian company, the court found that the service was likely to comport with due process.

Despite all this, the court denied the motion without prejudice. The reasoning was that “Plaintiffs have not submitted any evidence regarding the time or expense necessary to complete service pursuant to the Hague Convention in Austria, nor any indication that they tried to accomplish service through that method.” The decision is likely an acceptable exercise of the court’s discretion. But I’m not sure it’s a particularly good use of the court’s discretion, given that the court recognized that there is no hierarchy of methods of service in FRCP 4(f) and no requirement of exhaustion of other methods or of first resort to the Convention.

Image credit: Ken Lunde (http:lundestudio.com) (CC BY-SA). The gun is not necessarily the same kind involved in the case.