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.
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