The case of the day, Tuckerbrook Alternative Investments, LP v. Banerjee (D. Mass. 2010), involves an attempt to serve process in India. Tuckerbrook was a registered investment adviser. Banerjee, a resident of India but (according to Tuckerbrook) a US citizen, was a portfolio manager for Tuckerbrook. The parties had a dispute in 2008, which they settled. Tuckerbrook then sued Banerjee for breach of the settlement agreement.
Tuckerbrook’s first attempt to serve process on Banerjee did not go so well. According to the return of service: “Since Mr. Sumanta Banerjee was not available,” the process server “delivered the documents … to the letter box of Mr. S.K. Banerjee father of Mr. Sumanta Banerjee.” (India has objected to service under Article 10(c), so it’s not clear why Tuckerbrook thought this would work. Does Indian law permit alternate methods of service for documents coming from abroad, such that service would be permissible under Article 19?) On the basis of this return, Tuckerbrook requested entry of a default and then a default judgment. The clerk entered the default, but Banerjee (the defendant, not his father) then filed a motion to vacate the default, asserting that he had not been served with the summons and complaint. Judge Young granted the motion to vacate.
Tuckerbrook then filed a “motion to deem service of process effectuated,” or in the alternative, to authorize service by e-mail. The motion asserted that Tuckerbrook had taken steps to serve process under the Hague Service Convention, though the motion does not spell out the action Tuckerbrook took. Presumably, Tuckerbrook sent a letter of request to the Indian Central Authority, which had not yet been executed.
The judge granted the motion without waiting for a response from Banerjee (the ruling came nine days after the motion was filed, and under the local rule, adverse parties ordinarily have 14 days to respond unless the motion “indicates in writing on the face of the motion that ex parte consideration is requested.”) In my view, the judge should have given Banerjee a chance to respond, as he had appeared in the case.
After Banerjee complained that he still had not been served, the judge clarified his earlier order and ordered Tuckerbrook to serve another copy of the complaint (but not the summons) to Banerjee. This order seems to presume that Banerjee had already been served, as otherwise service of the summons would also be necessary, but if Banerjee had already been served, then why was another copy of the complaint required? Moreover, India has objected to service of judicial documents via the postal channel, and Banerjee refused delivery of the package. What a mess!
In any event, after further proceedings, the court entered a default judgment, and Banerjee moved to vacate it and, strangely and (for his service of process claims) fatally, also moved to dismiss. The motion to dismiss asserted several affirmative defenses, but it did not assert the defense of insufficient service of process.
The judge vacated the default judgment, but he indicated that Banerjee would not be permitted to contest service of process any further. While the judge was troubled by the apparent insufficiency of the service of process in the case, he held that under Rule 12(h), Banerjee’s failure to include the defense of insufficient service of process in the motion to dismiss waived the defense. This is entirely correct as a matter of federal civil procedure.
In short, Tuckerbrook was lucky. Had Banerjee not omitted the defense from his motion, I think the defense of insufficient service of process would have held a lot of water.