The 9th U.S. Circuit Court of Appeals, in what promises to become a landmark decision, ruled on March 20 that a Las Vegas hotel-casino could effect service by e-mail upon a defendant in a foreign country with no physical address.
The initial AP reports on this decision spun the news to make it appear the court had given lawyers carte blanche to serve legal documents via e-mail. Not true.
The 26-page decision is a good read. The opinion traces the background of an alleged trademark infringement and the reader quickly grasps the dilemma that the Rio Casino Resort faced in dealing with the defendant, Rio International Interlink (RII), an Internet gambling operation.
RII conducted business by e-mail and through two websites-first through www.riosports.com, which defendant shut down after a demand to cease desist from plaintiff, but then activated a new site www.betrio.com which hosted an identical sports gambling operation.
Defendant had no physical presence in Nevada and none in the United States. An international courier (IEC) in Miami had dealings with defendant but were not authorized to accept service on its behalf. IEC did, however, state the defendant was located in Costa Rica. Plaintiff hired a private investigator who could not locate an address for defendant in Costa Rica.
Rule 4(f) of the Federal Rules of Civil Procedure provides three options for serving process in foreign countries. The first two options were unavailable to plaintiff because Costa Rica is not a signatory to any international treaty, and service by letter rogatory or by agent weren't available because there was no known address for delivery of the documents.
The circumstances of this case cried out for an alternative means of service. And Rule 4(f)(3) fit the bill. It permits service upon individuals in a foreign country by other means not prohibited by international agreement as may be directed by the court.
The court acknowledges there is no precedent for condoning service of process by e-mail but at the same time noted that the federal courts could not be shackled to "anachronistic methods of service" that prevents them from entry into the "technological renaissance."
The courts will likely see more of these cases relatively soon. Currently two other major Las Vegas hotels-Bellagio and Luxor-are suing web firms over trademark infringement Bellagio is seeking an injunction against several overseas Internet gaming companies to stop them from using the Bellagio trademark on their online casino websites.
There is little doubt that some lawyers will attempt service by e-mail without first getting a court order. And if there's no objection by the defendant, it's foreseeable that some judges will not question the validity of the service. That's not a pleasant thought.
GEORGIA BILL DEFEATED
In the last issue we reported on HB 1065, the Georgia bill that would allow licensed PIs to serve process in Georgia without appointment. NAPPS was opposing the bill. This legislation had a full head of steam and looked almost unstoppable. But Paul Tamaroff, after grabbing his lance and donning his white hat, jumped aboard his trusty steed and raced into battle .Needless to say, he (we) won.
