Commodity Futures Trading Commission v. Mikkelsen

Background

The Commodity Futures Trading Commission (CFTC) moved for default judgment against Casper Mikkelsen. A default judgment is a judgment requested against a defendant who has not appeared or defended the case. Before entering judgment, the court required supplemental briefing about whether Mikkelsen had been properly served.

The CFTC stated that the amended summons and complaint were personally served on Mikkelsen in Denmark through DHL International. The court noted, however, that the CFTC relied only on service through postal channels under Article 10(a) of the Hague Service Convention, an international treaty governing service of legal documents abroad; it did not argue that service was valid as personal service.

Service-law issue

Federal Rule of Civil Procedure 4(f)(1) permits service on an individual outside the United States by internationally agreed methods, including methods authorized by the Hague Service Convention. The Supreme Court has explained that service by mail under Article 10(a) is permissible when two conditions are met: the receiving country has not objected to service by mail, and the service method is authorized by the otherwise applicable law.

The CFTC pointed to authority suggesting that Denmark had not objected to service by mail. But the court found that the CFTC had not explained why Danish law authorized the service used here. The court discussed a prior decision that relied on a Danish lawyer’s declaration, translations of Danish statutes, and a translated Danish court ruling. That decision relied on several provisions, but the court here observed that only section 155 appeared potentially relevant to service on an individual. Section 157 a appeared to concern corporations and other entities, while section 163(2) appeared inapplicable because Mikkelsen had not appeared and had not agreed that he received the documents.

Section 155 was translated as allowing service by sending a document to the person concerned by recorded delivery. The court identified several unresolved questions: what “recorded delivery” means under Danish law, whether “service by post” includes an international courier such as DHL, and how section 155 fits with Denmark’s statement that its lack of objection to postal service did not mean that postal service was valid under Danish law. The court also directed the CFTC to clarify whether service by mail can serve as a basis for service under Rule 4(f)(1), because some courts have said that the Hague Service Convention permits but does not itself authorize service by mail.

Order

The court did not grant or deny the CFTC’s motion for default judgment. Instead, it ordered the CFTC to submit, by June 15, 2021, a letter of no more than five pages addressing whether service by mail is authorized under Danish law. The CFTC could attach supporting exhibits, and Danish-language materials had to include certified English translations. The court also ordered the CFTC to serve Mikkelsen with a copy of the order by overnight courier within two business days and file proof of that service within two business days after service. Judge John P. Cronan signed the order.