by Ted Folkman – LettersBlogatory.com
The case of the day, RPost Holdings, Inc. v. Kagan (E.D. Tex. 2012), is yet another example of why you shouldn’t let your lawyer communicate with the plaintiff if you intend to duck service. RPost sued Dmitry Kagan for trademark and patent infringement on account of pointofmail.com, a website it alleged Kagan owned. RPost attempted to make service on Kagan in Israel via the central authority mechanism under the Hague Service Convention, but the central authority responded that Kagan had moved to an unknown address. RPost managed to make email contact with Kagan: it received a response to its email from Jonathan Agmon, who stated that he represented Kagan “with regard to responding to your letter.” Agmon refused to accept the summons and complaint on Kagan’s behalf or to provide a valid address where Kagan could be served under the Convention. RPost then asked for leave to serve the complaint by email on Kagan and Agmon.
The court agreed. First, the Convention does not apply, because Kagan’s address is unknown, and RPost acted with reasonable diligence. Second, the service requested complied with due process, because it was clear, from the fact that Agmon had responded to the email to Kagan, that the email had in fact reached Kagan. In a neat twist, RPost said it had used its own “registered E-mail technology” to verify that Kagan had received the message.
The moral of the story: if you intend to duck service, run silent and run deep. Once your lawyer surfaces, the court will likely permit service on the lawyer, particularly if he is intransigent and refuses to provide an address for you or to accept service on your behalf.
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