The case of the day is PATS Aircraft, LLC v. Vedder Munich GmbH (D. Del. 2016). PATS had a contract with a customer for modification of a Boeing 737 jet. PATS subcontracted the interior work to Vedder’s predecessor in interest, Loher Raumexklusiv GmbH. The parties ended up in a contract dispute. Vedder brought a declaratory judgment action in Germany, while PATS brought an action for breach of contract and breach of warranty in Delaware. Vedder moved to dismiss for insufficient service of process.
Continue reading Case of the Day: PATS Aircraft,v. Vedder Munich
The case of the day is Lipenga v. Kambalame (D. Md. 2015). Fairness Lipenga sued Jane N. Kambalame, a Malawian diplomat, alleging violations of the Victims of Trafficking and Violence Protection Reauthorization Act, the Fair Labor Standards Act, and Maryland wage and hours laws, as well as for false imprisonment, breach of contract, and other common law claims. The case, in other words, is similar in its broad outlines to Gurung v. Malhotra, 279 F.R.D. 215 (S.D.N.Y. 2011). Kambalame is presently the Malawian high commissioner in Zimbabwe. Lipenga sought to serve process on Kambalame at her personal address in Malawi but could not determine her address. It then sent a request for service to the Malawian central authority (Malawi is party to the Hague Service Convention), asking it to make service on her by serving the documents on the head of her government office.
This requires a bit of explanation. First, a Malawian statute provides: “Where the person to be served is in the Public Service, the Court shall serve him by sending the process to the Head of the Office.” Second, while in general plaintiffs use Article 5(a) of the Convention, which requests the central authority to make service “by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory,” here Lipenga used Article 5(b). Under Article 5(b), the request is for service “by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.” So full marks to the lawyers who dug up the Malawian statute. (I have it on good authority that the kudos should go to Lindsay Reimschussel and Anastasiya Ugale of Jones Day in Washington). Representatives of the Malawian central authority informally acknowledged, in writing, that the documents had been served. “Verily I assure you that service was effective,” the representative wrote. But the plaintiff never received an Article 6 certificate. Lipenga moved for entry of default and, in the alternative, for leave to serve process by email and Facebook.
Continue reading Case of the Day: Lipenga v. Kambalame
The case of the day is Icon DE Holdings LLC v. Eastside Distributors (S.D.N.Y. 2015). Icon sued Eastside and served process in Quebec. The precise manner of service was unclear. Icon claimed it proceeded via the Quebec central authority. But while I see an affidavit of service from the process server I don’t see an Article 6 certificate from the central authority. My assumption is that Icon properly sent a request for service to the central authority but that instead of sending back an Article 6 certificate the central authority sent the affidavit.
In any event, Icon served the documents in English but without a French translation. It obtained a default judgment. Eastside successfully moved to vacate the judgment on grounds of insufficient service of process. The case was again before the court on Icon’s motion for reconsideration.
Continue reading Case of the Day: Icon DE Holdings v. Eastside Distributors