The case of the day is Fisher v. Petr Konchalovsky Foundation (S.D.N.Y. 2016). Fisher owns a painting that he claims is Still Life with Grinder, by Russian artist Petr Petrovich Konchalovsky. Fisher’s claim was that the Foundation, based in Moscow, had wrongfully declared the painting to be inauthentic. Fisher sought leave under FRCP 4(f)(3) to serve process on the Foundation by mail, but the judge denied the motion on the grounds that although Russia has unilaterally suspended compliance with the Hague Service Convention for requests for service emanating from the United States, it has nevertheless objected to service by postal channels. Its refusal to honor the treaty does not override its objections to service by postal channels under Article 10(a).
Fisher then sought leave under FRCP 4(f)(3) to serve process by email. My perspective on this should be familiar. Service has to be by a method authorized by the Hague Service Convention. You’re not going to allow service by mail because Russia objected to service by mail under the Convention—fine. Should you allow service by email? Well, what provision of the Convention authorizes it or even permits it? The answer, none, except possibly Article 10(a), the article on service by postal channels, but the whole reason we’re in this mess is because Russia does not allow service under Article 10(a).
But as longtime readers know, this analysis has not proved persuasive to very many American courts. Indeed, there are so many district court decisions to choose from that when granting Fisher’s motion, the judge did not even have to cite the leading case, Gurung v. Malhotra. Sigh.
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→