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David E. Klein v. United States of America

December 12, 2011

DAVID E. KLEIN, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

This action was commenced by David E. Klein against the United States of America ("Government"), seeking to recover funds that he alleged had been wrongfully assessed against and collected from him by the Internal Revenue Service. The Government answered and filed a counterclaim against Klein as well as another individual, Rakesh Aggarwal. (Dkt. #5.)

In November 2009, the Government filed an application for entry of default against Aggarwal. (Dkt. #18.) In support of that application, the Government stated that Aggarwal had been served on June 26, 2009, by attachment of a copy of the summons and counterclaim to the front door of Aggarwal's residence in Singapore, and by the subsequent mailing of a copy of those papers to that same residence. (Dkt. #18-2.) The Government noted that Aggarwal had not appeared in the action. Id. ¶ 6. The Clerk duly entered a default against Aggarwal on November 12, 2009. (Dkt. #19.)

In October 2010, Klein and the Government settled their claims against each other, and those claims were dismissed. (Dkt. #25, #26.) At about the same time, the Government moved for entry of a default judgment against Aggarwal in the amount of $283,376.79 plus interest. (Dkt. #27.) Aggarwal, who still had not appeared in the action, did not respond, and judgment was entered for the Government on October 27, 2010. (Dkt. #29.)

On July 27, 2011, Aggarwal, through his attorney, appeared in this action for the first time, and filed a motion to vacate the default judgment. Aggarwal contends that he was never properly served in this action, and that he first learned of the default judgment against him on July 6, 2011. Aggarwal states that on that date, while he was here in Rochester to testify at a deposition in connection with another lawsuit, he was served with a subpoena to be deposed in the instant action, and with a letter from the Government demanding payment of the amount of the default judgment. See Dkt. #31-3, #31-4.

As stated, Aggarwal contends that he was never properly served with the summons and counterclaim in this case. He asserts that personal jurisdiction was therefore never established over him. Aggarwal seeks an order vacating the entry of the default judgment, and quashing the subpoena. Aggarwal states that he would then consent to accept service of process through his counsel, and he requests thirty days within which to answer or otherwise respond to the Government's counterclaim.

The Government contends that service was properly effected here, and that Aggarwal willfully refused to answer or respond to the Government's counterclaim. The Government also argues that the relevant factors with respect to vacating default judgments do not weigh in favor of vacating the default judgment in this case.

DISCUSSION

"Federal Rule of Civil Procedure 4(f) governs service upon individuals in a foreign country ... ." Burda Media, Inc. v. Viertel, 417 F.3d 292, 299 (2d Cir. 2005). That rule provides that:

Unless federal law provides otherwise, an individual ... may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country's law for service in that country in an action in its ...


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