The case of the day is Braverman Kaskey P.C. v. Toidze (E.D. Pa. 2013). Braverman Kaskey, the law firm that represented Maya Toidze in Cook v. Toidze, the case of the day from July 1, 2013, sued her, asserting that she had failed to pay legal fees. When the firm still represented Toidze, she resided in Markham, Ontario. However, Braverman Kaskey was unable to serve process on her at her last known address, because she had moved. Braverman Kaskey attempted to locate Toidze by “contacting the post office, checking telephone records, and conducting an internet search.” But it was unable to locate her, and so it moved for leave to serve process by publication. The court granted the motion, and Braverman Kaskey published notices in the Markham Economist & Sun and the Philadelphia Legal Intelligencer (the fee suit was pending in Philadelphia). After Toidze failed to answer, the court entered a default judgment. Toidze moved to vacate the default judgment under FRCP 60(b)(4) on the grounds that the judgment was void. She asserted that she had been living in Russia; that Braverman Kaskey could have located her “had it exerted greater effort;” that the service failed to comply with the Hague Convention or with Russian law governing service of process; and that the service did not comport with due process.
The judge rejected the argument that Braverman was insufficiently diligent in seeking to locate Toidze. Toidze says that Braverman Kaskey engaged in “pure speculation” or even bad faith when it acted on the assumption that she was still residing in Canada, but this is a pretty weak argument, as Braverman Kaskey had no reason to know that Toidze had moved to Russia.
Although the court doesn’t deal with the issues in these terms, it’s clear that the Hague Service Convention did not apply, since under Article 1 the Convention does not apply “where the address of the person to be served with the document is not known.” Some courts hold that there is a diligence requirement, but the court found that Braverman Kaskey exercised reasonable diligence. It’s also clear that Russian law was irrelevant. Under FRCP 4(f)(3), a court may authorize a method of service even if it violates foreign law (though not if it violates the Convention—but as we have just seen, the Convention is inapplicable here).
The real question is due process. The constitutional question is whether the method of service chosen was “reasonably calculated” to give actual notice. In the absence of any evidence that Toidze had moved from Markham, publication of the notice in Markham was, the court reasoned, “reasonably calculated” to reach her, even though, on the facts that were unknown to Braverman Kaskey at the time, there was little chance she would see the notice. But do not shed tears for the injustice to Toidze; Braverman Kaskey emailed copies of the relevant papers to Toidze at an email address she had provided earlier, so it seems likely she had actual notice of the proceedings (even though no one asserted that the email constituted service of process).