Pesic v. Mauritius International Arbitration Centre Limited

Background

The court had previously ordered the plaintiffs to show why service on Intertrust Limited qualified as service on Talinka Trading Inc. The order warned that failure to respond by February 26, 2024, would result in dismissal of the claims against Talinka. The plaintiffs filed no response by that deadline or afterward.

The court had also denied the plaintiffs’ request for alternate service on Barry Tilley because they had not shown that they first tried to serve him under the Hague Service Convention, an international agreement governing service of court papers abroad. The court later denied a request that it help carry out service under that Convention, explaining that service was generally the plaintiffs’ responsibility.

Service on Barry Tilley

The plaintiffs later filed a declaration stating that Tilley personally accepted service in Australia on March 21, 2024. They relied on Federal Rule of Civil Procedure 4(f)(1) and Article 10(c) of the Hague Service Convention.

The court explained that it was not clear whether this method of personal service qualified under Rule 4(f)(1). It noted, however, that if the service was not authorized under Article 10(c), it could potentially be authorized under Rule 4(f)(2)(C), which allows personal delivery of the summons and complaint abroad when the applicable conditions are met. The court observed that Australia had not objected to Article 10(c) and that applicable law in New South Wales appeared to permit personal service by a private process server.

The court found the plaintiffs’ proof insufficient. The supporting document was an email rather than a sworn affidavit, and it did not identify the person served or describe the documents delivered. The court therefore ordered the plaintiffs to show cause—meaning to provide a reason—for why the court should treat personal service on Tilley as proper. The plaintiffs had to file proof of service, including an affidavit from the process server, by April 19, 2024.

Disposition

The court dismissed all claims against Talinka Trading Inc. and directed the clerk to terminate Talinka as a defendant. The court did not finally determine whether service on Tilley was valid; it ordered further proof on that issue. The court also certified that any appeal from the order would not be taken in good faith and denied the plaintiffs fee-free status for an appeal.