Case of the Day: St. Francis Assisi v. Kuwait Finance House

The case of the day is St. Francis Assisi v. Kuwait Finance House (N.D. Cal. 2016). St. Francis, a non-profit, sued Hajjaj al-Ajmi, alleging that he had financed ISIS, which was responsible for the murder of Assyrian Christians in Iraq and Syria. St. Francis moved for leave to serve process on al-Ajmi via Twitter.

The judge made a glaring mistake. She wrote that Kuwait is “not a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents,” when in fact it is. So the judge’s conclusion that service by Twitter was not barred by an international agreement—a necessary finding under FRCP 4(f)(3)—failed even to address the Convention. It’s my view that alternate means of service such as service by email, service by Facebook, service by Twitter, etc., are impermissible under the Convention particularly when, as in the case of Kuwait, the state of destination has objected to service by postal channels (since such methods are permissible, if at all, only by analogy to service by post). For a quick summary of my view, see Gurung v. Malotra is Wrongly Decided and FTC v. PCCare 247.

This Post Has 6 Comments

  1. Aaron Lukken

    I have to wonder … could the court’s error be attributed to something as simple as Kuwait’s omission from the HCCH status table?

    1. Ted Folkman

      It’s on the status table. You just have to click the “non-members” tab, because the table lists HCCH member states separately from non-member states like Kuwait. I will make a suggestion to the folks at the HCCH on this, because I think you may be right that the confusing presentation of the table contributed to the error.

      1. Aaron Lukken

        There we go. I hadn’t realized that they’d changed the formatting in the last revision of the HCCH site. The old layout listed non-members below the members… in the new iteration, there’s a tab for each, just as you indicate.

        I thought it awfully odd that they’d reflect accession in the Authorities & Practical Info page, but leave non-members out of the Status Table.

        (The tab is even more hidden on mobile devices.)

        So, how do we correct the court’s error? This is clearly a violation of Schlunk– but who has standing?

        (Amicus?)

        1. Ted Folkman

          I don’t know about you, but I’m not really in the business of roving correcter of judicial errors! It seems to me that the Kuwaiti defendant will be able to bring a motion for insufficient service of process, if it wishes, and to argue that the service was improper under FRCP 4(f)(3).

          1. Aaron Lukken

            Twenty bucks and a beer of your choice says the Kuwaiti defendant fails to appear. 🙂

            [Sadly, my business *does* involve roaming about the countryside, correcting judicial errors, much like the guy in the Men Without Hats video… I just need a motley-clad dwarf and crazy blonde woman to join me in my quest.]

            For the uninitiated…
            https://www.youtube.com/watch?v=AjPau5QYtYs

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