The case of the day is Klein v. United States (W.D.N.Y. 2011). David E. Klein sued the government to recover taxes he claimed had been wrongly assessed. The government counterclaimed against Klein and another, Rakesh Aggarwal. The government served process on Aggarwal by “attachment of a copy of the summons and counterclaim to the front door of Aggarwal’s residence in Singapore, and by the subsequent mailing of a copy of those papers to the same residence.” When Aggarwal failed to appear, the government obtained a default judgment against him.
Aggarwal then moved to vacate the default judgment on the grounds that he had not been properly served with the summons and complaint. He agreed to accept service of process through his lawyer if the judgment were vacated.
Singapore is not a party to the Hague Service Convention, so the parties agreed that Fed. R. Civ. P. 4(f)(1) was inapplicable. The government could have sought to make service under Rule 4(f)(2), which provides several permissible modes of service (for instance, service under the law of the foreign country, service by mail dispatched by the clerk, personal service), but it did not. Instead, the government asserted that the service was proper under Rule 4(f)(3), which permits service “by any other means not prohibited by international agreement, as the court orders.” But curiously, the government had not sought the court’s permission to make service under Rule 4(f)(3), so the court correctly held that the service failed and the judgment was void. Easy case.
The case of the day isLufthansa Technik AG v. Astronics Corp. (W.D.N.Y. 2011). Lufthansa had a patent on power supply technology for use in the passenger cabin of commercial aircraft. It sued Astronics Advanced Electronic Systems, Inc., in Germany for patent infringement. Astronics AES filed its own suit in Germany seeking to invalidate the patent. The infringement suit has apparently been heard, and the court had the matter under advisement. The invalidity suit was in the starting phases; Lufthansa had not yet responded to the complaint.
Lufthansa sought judicial assistance in taking discovery from Astronics AES’s US parent company, Astronics Corp., which was located in East Aurora, New York. Lufthansa brought a second judicial assistance proceeding in the Western District of Washington, seeking essentially the same discovery from Astronics AES itself.
The court’s decision was curious. It held that because the discovery sought in the two proceedings was identical, the general rule against duplicative litigation required dismissal. I don’t really buy this. In domestic US litigation, there would be noabsolute bar to serving subpoenas for the same documents on two entities located in two districts. The two judicial assistance proceedings are not true civil actions asserting claims for relief; they are merely vehicles for the issuance of the two subpoenas. I don’t see that the considerations behind the policy against duplicative litigation really apply in this context. To be sure, once the subpoenas are issued, the target could object to the subpoena on the grounds of undue burden and argue that the documents were in the possession of another entity that is a more proper target given the nature of the case. But that’s not to say that the subpoena shouldn’t issue in the first instance.