The case of the day is Owen v. Sports Gymnastics Federation of Russia (D. Me. 2012). The plaintiff, Charles Owen, is acting pro se. I wish him luck—I don’t think anyone should try to pull off a transnational litigation without a good lawyer!

The complaint alleges that Owen is the “webmaster” for several “official websites” for various gymnasts in Russia as well as Ukraine, Belarus, and Uzbekistan. He apparently hosts these websites gratis, but they are “approved and endorsed by the gymnasts” and are “accepted by the gymnastics community worldwide as the official sites of the gymnasts.” Owen complains that the Sports Gymnastics Federation of Russia is hosting websites for the gymnasts that it calls “official” websites. After some false starts (an initial suit in the District of Maine, a suit in Russia, and a suit in the Maine Superior Court), Owen sued the Sports Gymnastics Federation for fraud, trademark violation, and violations of Russian law.

Owen sought leave to serve the Federation via email or fax. He noted that Russia had unilaterally suspended judicial cooperation with the United States under the Hague Service Convention—a problem we noted in March 2011.

The judge denied the motion, but her reasoning is questionable. She questioned whether Russia was still refusing to cooperate in service of process matters, which is fair given that Owen gave her seven-year-old information on the dispute, but in fact (to the best of my knowledge at least) Russia continues to refuse to comply with the Convention. She wrote that Owen would first have to present her with evidence that the dispute was ongoing before she would consider authorizing alternate means of service. But this is to treat Rule 4(f)(3), the rule governing alternate service, as a disfavored alternative to service by other means. This is incorrect: Rule 4(f)(3) is not disfavored. The judge missed what I think is the true issue: service by fax and email are not available means of service under the Convention. It’s one thing to serve by email where the defendant’s address is unknown, and the Convention therefore does not apply, or when you’re serving the defendant’s agent in the United States, or the like. But where the defendant is in Russia, it seems to me that the method of service must comply with the Convention. So I think the judge has held out false hope to Owen. Better to hire a Russian lawyer to get the documents served by means permitted by Russian law.