Gurung v. Malhotra
279 F.R.D. 215
| S.D.N.Y. | 2011Background
- Gurung, a former domestic worker in Manhattan (2006–2009), sues the Malhotras on multiple state and federal labor and human rights claims, plus related common law claims.
- GOI intervenes, challenging Gurung’s service method and objecting to service outside the Hague Convention.
- Gurung attempts service through the Hague Convention; after delays, the court authorizes alternative service under Rule 4(f)(3) due to perceived futility and evasion.
- GOI later refused to complete service via the Central Authority, asserting immunity concerns for the Malhotras; GOI sought amicus intervention.
- Gurung completed service under the December 2010 Order; Gurung moves for default judgment when no responsive pleading was filed by the Malhotras.
- The court determines the alternative service complied with Rule 4(f)(3) and due process, and grants default judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 4(f)(3) authorizes the court’s alternative service | Gurung asserts alternatives were proper due to futility and evasion | Malhotras/GOI contend alternatives violate the Hague Convention | Yes; authorized under Rule 4(f)(3) and Convention |
| Whether GOI’s February 2011 refusal invalidates service | GOI refusal does not bar service; immunity defense is reviewable | GOI refusal was proper under Article XIII | Improper basis for refusal; service valid under Article XIII not grounded in sovereignty |
| Whether Article X objections precluded publication/e-mail service | GOI objected only to Article X means; other means allowed | GOI's Article X objection prevents those alternative means | GOI’s Article X objection does not bar non-Article X alternatives |
| Whether service satisfied due process | Actual notice via email suffices | Publication/email may not meet due process | Yes; notice reasonably calculated to reach Malhotras |
| Whether default judgment is appropriate | Malhotras failed to respond; default justified | No response does not by itself justify default | Granted; default judgment authorized |
Key Cases Cited
- Volkswagenwerk A.G. v. Schlunk, 486 U.S. 694 (1988) (mandatory use of Hague procedures when available)
- Burda Media, Inc. v. Viertel, 417 F.3d 292 (2d Cir. 2005) (idea that service beyond Central Authority can satisfy due process when nationwide notice occurs)
- In re S. African Apartheid Litig., 643 F. Supp. 2d 423 (S.D.N.Y. 2009) (court-directed service appropriate when signatory refuses to cooperate for substantive reasons)
- Tome v. SEC, 833 F.2d 1086 (2d Cir. 1987) (service by publication permissible where defendant has actual notice of litigation)
- Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986) (due process considerations in service issues)