The case of the day is Marks Law Offices LLC v. Mireskandari (3d Cir. 2017). The defendants, Shahrokh Mireskandari and Paul Baxendale-Walker, had hired Bruce Marks to represent them in a RICO case. Based on a decision from California, it seems that Mireskandari and Baxendale-Walker were two English solicitors who had been “struck off,” as they call suspension or disbarment over there, and that they decamped to the United States to attack the English bar disciplinary proceedings. Marks sued them for allegedly unpaid legal fees.
Marks sued Mireskandari and Baxendale-Walker in the federal court in Philadelphia, and he ultimately obtained a default judgment for nearly $230,000. The defendants moved to set aside the judgment on the grounds that it was void for insufficient service of process. The district court denied the motion, and the defendants appealed.
The attempts at service on Baxendale-Walker included service by mail to his last known address in London under FRCP 4(f)(2)(C)(ii); service on Mireskandari (and maybe Baxendale-Walker, though it’s not clear) by mail at his Beverley Hills address under FRCP 4(e)(1) and Pennsylvania procedural rules; attempted personal service that the defendants had given in Beverly Hills; and alternate service by email to the defendants and by mail to their US counsel.
The only issue of real interest to us is the issue of service by email on Baxendale-Walker. The court, which (the opinion makes clear) thought the defendants were not being truthful about their addresses and were not acting in good faith, nevertheless wisely resisted the temptation to say that service by email on Baxendale-Walker in the UK was proper. Assuming that Baxendale-Walker’s address in the UK was known, email service would have been improper under the Hague Service Convention and thus FRCP 4(f)(3) for the reasons I’ve given several times before and won’t rehash here. But the court simply avoided ruling on the issue by pointing to the other methods of service used in the action that were clearly permissible:
While Baxendale-Walker points out that England, the receiving state, might object to email service, he offers no indication that service by regular mail (or upon one’s attorney for that matter) would be similarly objectionable.
Although there are many district court cases holding, erroneously, that service by email is permissible under the Convention even in states that have objected to service under Article 10(a), there are, to my knowledge, no federal appellate decisions on point. This case comes pretty close, though as we’ve seen, the court avoided a decision. I have a case pending on appeal now that squarely raises the question, but it also features a jurisdictional issue that might again lead the court to avoid deciding. I will let you know what happens.