A note to readers: Due to my travel schedule, there will likely be no new posts next week, and I may not respond to your comments or emails as quickly as I ordinarily do. Also, thank you for your feedback on political posts. I am going to continue writing them, but I am going to segregate them from the ordinary posts. My current thought is to put them at politics.blogatory.com, but if anyone can come up with a good pun or similarly catchy name that uses “blogatory,” I’m all ears. Also, by separating the political posts, I think we can open up some new possibilities, such as regular contributing authors. So if you are interested in writing about US (or non-US) politics at the new blog, whatever it ends up being called, let’s talk!
The case of the day is Ahrens v. Pecknick (D. Nev. 2016). Edd H. Ahrens sued Windermere Holdings Group, Ltd. and others for copyright infringement and unjust enrichment. Windermere was a Seychelles company. Ahrens attempted service via the central authority, but the Article 6 certificate stated that Windermere was no longer registered, and the process server’s declaration said that Windermere was no present at the address where he attempted service. Ahrens sought leave to serve process by email, using an email address found doing a WHOIS search of the domain name Windermere used for its website. Continue reading Case of the Day: Ahrens v. Pecknick→
The case of the day is SEC v. Nagaicevs (N.D. Cal. 2013). The SEC alleged that Igors Nagaicevs, a Latvian national, had gained unauthorized access to online brokerage accounts and made trades in those accounts to manipulate securities prices in his favor. It brought claims under § 17(a) of the Securities Act and § 10(b) of the Securities Exchange Act.
The SEC sought to make service of process via the Latvian central authority, using the address Nagaicevs had used to open most of his trading accounts. The central authority returned the request for service unexecuted, indicating that “the addressee cannot be located.” The SEC then moved under FRCP 4(f)(3) for leave to serve Nagaicevs by email, using the email address he had provided to the trading firms when he was doing business with them. The judge granted permission, provided that the SEC also was required to mail the documents to addresses in Latvia and the Seychelles associated with Nagaicevs. (Both Latvia and the Seychelles are parties to the Hague Service Convention, and neither objects to service via postal channels). The SEC attempted service by all three methods. The mailed documents were delivered to the Seychelles address, but the documents addressed to the Latvian address were returned as undeliverable. The SEC moved for a default judgment.
The judge, without any analysis, granted the motion for a default judgment. I would like to observe that this seems to be a case where the defendant’s whereabouts were unknown. Thus under Article 1, the Convention does not apply, and so this case does not belong in the Letters Blogatory hall of infamy with Gurung v. Malhotra or FTC v. PCCare247, Inc., both of which erroneously approved service by email even though the Convention did apply. FRCP 4(f)(3) permits service by email unless forbidden by an international agreement, and because the email address was one Nagaicevs had used in the business dealings that were relevant to the SEC’s case, there seems to be no due process problem.