The case of the day is Daguerre S.A.R.L. v. Rabizadeh (N.Y. App. Div. 2013). Daguerre is a French auction house. It alleged that the defendant, Albert Rabizadeh, was the winning bidder at a 2007 auction in Paris for four antique Russian drinking cups. Daguerre sued for the purchase price in the Superior Court of Paris in 2009. A process server served the summons on Rabizadeh by leaving it with a suitable person at his place of business in New York. Rabizadeh did not appear in the action, and the French court entered judgment against him. Daguerre then sought recognition and enforcement in New York. The judge granted Daguerre’s motion for summary judgment, and Rabizadeh appealed.
The appellate court reversed on technical grounds. Service by delivery of the documents to the defendant’s usual place of business is a permissible method of service under New York law, but only if the documents are also mailed to the defendant’s last known address or his actual place of business. The return of service did not aver that the documents had been mailed and thus the service was insufficient. It’s unclear whether, on remand, Daguerre will be able to show that the process was mailed to Rabizadeh; if not, much time and money will have been wasted.
The case is rightly decided. But the case arises in an interesting posture. I’ve previously observed that courts treat an Article 6 certification by a central authority under the Hague Service Convention as prima facie evidence, or even something more than that, that service was properly effected. Suppose Daguerre had sought to effect service via the US central authority, and the central authority’s contractor had done what the process server did here. Would it be appropriate for the US court to give more deference to the Article 6 certificate than it would give to an ordinary return of service in a purely domestic case? On the one hand, the US court is in a position to decide whether the service complied with US law, and on ordinary principles, a judgment without valid service of process is void, at least if the defendant did not appear in the action. On the other hand, the whole point of the Convention’s central authority mechanism is to provide some assurance to the plaintiff in the foreign action that service will be effected properly, and perhaps the United States has some international obligation to recognize a foreign judgment where service was made in the US under the Convention if the only objection to recognition is based on faulty service of process. Should the United States certify that the service was made and then pull the rug out from under the feet of the foreign judgment creditor after the judgment creditor, in reliance on the Article 6 certificate, has taken the case to judgment?
I’m of two minds about this. On the one hand, the problem will really only arise in a default judgment case, so the foreign judgment creditor will not have had to bear the costs of litigating the case on the merits. On the other hand, subject to due process considerations (i.e., as long as the US defendant had actual notice and an opportunity to defend), I see room to make a case that the Convention itself should require the US to recognize a judgment in such circumstances.