Civil procedure final exam question

[Ineedhelpplease]

I just took my civ pro final. I am just curious because I was doing well then I came upon a kind of tricky question(or just tricky for me).

The defendant was a Vietnamese corporation who conducted their business through the Internet. The plaintiff sent the defendant a rule 4(d) waiver of service through an email the plaintiff found on the defendants website. The plaintiff didn't hear from defendant for 60 days and proceeded to seek formal service of process which cost 50,000$ because he had hire a bunch of people to serve it on the Vietnamese defendant. The plaintiff is ultimately able to serve process through rule 4(F)(1) Hague provision. The question was whether the plaintiff could recover those rule 4(d)(2) expenses for having to serve formal process.

I looked through rule 4(f) and 4(d)(2) and there was nothing that mentions what would happen to the defendant if he didn't return the waiver. Rule 4(d)(2) only includes defendants not returning waiver of derive who are IN the Us but no mention of foreigners.

To try and get some points I just started of with the constitutional standard of Mullane, duesberry and flowers. I then mentioned that the sending of a email seemed to be improper and did not fall under those cases mentioned. And additionally I mentioned that the statute doesn't mention anything for foreign defendants except for how to service waiver of process. And I concluded that the plaintiff would lose his motion to get those $50,000 in damages. Was I way off?


I just can't stop thinking about it. Thanks

[thesealocust]

Stop thinking about it.

[D'Angelo]

you didn't talk about erie?

[Ineedhelpplease]

The hypo was that the case was filed in federal court in Cali through diversity. So I mentioned rule 4(e)(1) in order to use state law service of process rules but the professor provided a Cali provision that said process rules would operate under the rules of the court where the case was pending. So it was circular, there was in our hypo no state law it just took us back to frcp.

And now that I think about it I should have said there was no Hanna problem because there was no conflict.

There goes a point

[shock259]

Drink. Now.

[Magnolia]

I'm too drunk to comprehend the fact pattern you presented. I suggest you get on my level.

[HushYoDissents]

Here's what I got...

Quoting from "A Student's Guide to FRCP 2011"

Although Rule 4 emphasizes a preference for proceeding under international service treaty agreements (such as the Hague Service Convention), the waiver-of-service procedure is intended to permit waiver of service by foreign (non-governmental) defendants because of the cost savings to both plaintiff and defendant. Note, however, that the penalties for refusing to waive formal service of process do not apply to foreign defendants.

It cites to Quilling v. Shaw, 2001 WL 611147, at *1 (N.D. Tex. 2001).
However, it is also noted that at least one district court has rejected that argument.

I don't think an email was proper either... But I'm not positive. I can find info on court ordered service by email for foreign defendants but I don't think that applies here.

We didn't cover Erie, so I can't help you there.

I think you did pretty well from the points you have noted, if that eases your mind at all (it probs shouldn't because I'm also a 1L)

omg I'm so bored that I'm researching and answering Civ Pro crap, why did God make me such a loserrrrrr
I think I'm gonna take Shock & Magnolia's advice and start drinking now...