The case of the day is Latin American Theatrical Group, LLC v. Swen International Holding (C.D. Cal. 2013). Latin American filed a petition to confirm an arbitral award against Swen, a foreign corporation that had its offices in Panama. Latin American served process on Swen in Panama by mail. Panama is a party to the Inter-American Convention on Letters Rogatory and the Additional Protocol, but not to the Hague Service Convention. Swen moved to dismiss for insufficient service of process.
The judge noted that under Ninth Circuit precedent, service by mail under FRCP 4(f)(2)(C)(ii) was permissible only if the mail is sent by the clerk. The issue about whether the Hague Service Convention affirmatively authorizes service by mail without regard to FRCP 4(f)(2)(C)(ii) was irrelevant here given that Panama is not a party to the Convention. Swen argued that the service was permissible under FRCP 4(e) because that rule incorporates state law, and California law permits service by mail even if not sent by the clerk, but the judge properly rejected this argument on the grounds that FRCP 4(e) applies only to service within the United States.
The interesting point in the case came in a footnote. The court noted that § 9 of the FAA provides: “If the adverse party shall be a nonresident, then the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court.” According to the judge:
Courts have questioned the continuing validity of these rules—particularly where the respondent is located outside the United States—and have instead applied the Federal Rules of Civil Procedure to determine whether a petition to confirm arbitration has been properly served.
Okay, but the statute says what it says. I understand why courts would want to escape from the statute, particularly in light of the policy of the Federal Rules of Civil Procedure to relieve the Marshal of responsibility for service of process. But plaintiffs in confirmation cases who want to be super-careful and are not in a jurisdiction with an appellate case on point will consider serving process in accordance with the statute. See, e.g., Logan & Kanawha Coal Co., LLC v. Detherage Coal Sales, LLC, 789 F.Supp.2d 716 (S.D. W. Va. 2011) (requiring service by marshal).
The case of the day is Elcometer, Inc. v. TQC-USA, Inc. (E.D. Mich. 2013). Elcometer was a manufacturer and distributor of handheld coating thickness gauges. It sued TQC-USA, Paintmeter.com, and Robert Thoren (Paintmeter’s principal) for trademark infringement. Elcometer attempted to serve Paintmeter and Thoren via personal service and certified mail, but both attempts were unsuccessful. Elcometer also sought to send the summons and complaint to the email address Paintmeter and Thoren used to conduct business, but it received no response.
Elcometer’s lawyer did manage to speak with Thoren by phone before a hearing on its motion for a preliminary injunction, but Thoren, who refused to remove the allegedly infringing marks from the Paintmeter website, “indicated that [Elcometer] had no available recourse since he lives in Panama.” Later, he wrote, using the paintmeter.com email address: “You are wasting your time and your client’s money pursuing this matter. You will recover nothing from me, not one dime, mark my words.” Note to defendants: emails like this just make plaintiffs angry.
Elcometer moved under FRCP 4(f)(3) for leave to serve Paintmeter and Thoren via email. Because Panama is a party to the Inter-American Convention but not the Hague Service Convention, and because the Inter-American Convention is not exclusive, there was no question in the case about whether a treaty barred service by email. Service by email was reasonably calculated to reach the defendants, as was evident from Thoren’s use of the email address. The judge took note of Rio Properties, the leading case condoning service by email. Easy case.
The case of the day is Johnson v. Mitchell (E.D. Cal. 2012). The facts of the case are not terribly important. Suffice it to say that Johnson sought to serve a summons on two Panamanian nationals, Berrocal and Arosemena, in Panama.
Johnson’s first efforts were inauspicious. He tried to serve Berrocal and Arosemena by mail and by email, asserting that both methods of service were permissible under the California Code of Civil Procedure. But as the judge recognized, California law is irrelevant. While federal law incorporates state law on service of process when the defendant is to be served in a judicial district of the United States, it does not incorporate state law when the defendant is to be served abroad.
Johnson’s next effort was better in concept. He asked the clerk to address and mail the papers to the defendants under FRCP Rule 4(f)(2)(C)(ii), which permits service “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” But for reasons that are unclear to me, the clerk “informed plaintiff that it does not provide that service.”
Panama is a party to the Inter-American Convention on Letters Rogatory, but rather than attempting service by the method prescribed by the Convention, Johnson sought and received leave to serve process by mail and email.
The interesting tidbit in this otherwise mundane case is the suggestion that at least some clerk’s offices do not facilitate service under Rule 4(f)(2)(C)(ii). This is surprising to me. I will see what I can get in the way of clarification from the Administrative Office of the US Courts.