Case of the Day: Indagro v. Nilva

The case of the day is Indagro S.A. v. Nilva (D.N.J. 2014). Indagro had an arbitral award against Viva Chemical Corp. It sued Veniamin Nilva for breach of contract, asserting that he had guaranteed payment of the award, and on a veil-piercing claim, asserting that he was personally liable for the award against Viva.

There was an issue about the timeliness of Indagro’s attempt to serve process on Nilva that I will leave aside to focus on the main issue, the permissibility of the method of service. Indagro’s counsel handed the papers to Nilva while he was attending a related arbitration hearing in Paris. If the Hague Service Convention applies, then the service was clearly improper, since Indagro’s lawyer was not a “competent person” to serve process under French law, and thus Article 10(c) did not apply. If, on the other hand, the Convention did not apply, then the service was also improper under FRCP 4(f)(2)(C)(i), because French law (I believe) prohibits a private lawyer from serving process in France.

Although ultimately the outcome was the same whether the Convention applied or not, there was a question about its applicability because Indagro claimed that Nilva’s address was unknown. Under Article 1, the Convention does not apply if the defendant’s address is unknown. However, Indagro’s claim was not that Nilva’s address was unknown, but that because Nilva did not reside in France, as a matter of law his address there was unknown. The court correctly rejected this argument. I see no basis in the Convention for concluding that under Article 1 an address is unknown if the person to be served did not reside in the state where service was to be effected. And in any case, Nilva had a temporary address in France.

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