The case of the day, RPost Holdings, Inc. v. Kagan (E.D. Tex. 2012), is yet another example of why you shouldn’t let your lawyer communicate with the plaintiff if you intend to duck service. RPost sued Dmitry Kagan for trademark and patent infringement on account of pointofmail.com, a website it alleged Kagan owned. RPost attempted to make service on Kagan in Israel via the central authority mechanism under the Hague Service Convention, but the central authority responded that Kagan had moved to an unknown address. RPost managed to make email contact with Kagan: it received a response to its email from Jonathan Agmon, who stated that he represented Kagan “with regard to responding to your letter.” Agmon refused to accept the summons and complaint on Kagan’s behalf or to provide a valid address where Kagan could be served under the Convention. RPost then asked for leave to serve the complaint by email on Kagan and Agmon.
The court agreed. First, the Convention does not apply, because Kagan’s address is unknown, and RPost acted with reasonable diligence. Second, the service requested complied with due process, because it was clear, from the fact that Agmon had responded to the email to Kagan, that the email had in fact reached Kagan. In a neat twist, RPost said it had used its own “registered E-mail technology” to verify that Kagan had received the message.
The moral of the story: if you intend to duck service, run silent and run deep. Once your lawyer surfaces, the court will likely permit service on the lawyer, particularly if he is intransigent and refuses to provide an address for you or to accept service on your behalf.
Photo Credit: United States Navy
The case of the day is Kudu Co. v. Latimer (E.D. Tex. 2011). Kudu sued for confirmation of a Thai arbitral award against Latimer. Latimer first moved to dismiss on the grounds that he had not been served with process. The dispute centered on whether Latimer actually resided at the Texas address where he was served with process. The court denied the motion to dismiss, apparently concluding that the address where service was made was Latimer’s “dwelling or usual place of abode,” see Fed. R. Civ. P. 4(e)(2)(B). But when Latimer later moved to dismiss on the grounds that the court could not exercise personal jurisdiction, the magistrate judge concluded that Latimer was a resident of Thailand and recommended granting the motion. This is somewhat curious, for obvious reasons. The magistrate judge sought to square the circle by suggesting that on the evidence before him when he ruled on the first motion. Maybe this is so, but it’s not clear why Latimer wouldn’t have put before the court the evidence regarding his residence when he moved to dismiss on the basis of insufficient service of process.
Intelligender LLC v. Soriano (E.D. Tex. 2011). Where plaintiff served process on a Chilean defendant using an alternate means of service without first requesting leave of court under Rule 4(f)(3) and did not show that the alternate means were permissible under the Inter-American Convention, the court denied a motion to approve the alternate means of service nunc pro tunc.
In re Braga (S.D. Fla. 2011). Granting in part a motion to stay discovery under the judicial assistance statute pending the resolution of issues in litigation in Brazil and the Cayman Islands. The court had previously denied a motion to vacate its order allowing an application for judicial assistance in taking discovery on an ex parte application.