An interesting opinion was handed down this morning in the Middle District of New York—not very earth-shattering, to be sure, but a solid illustration of where lawyers think they know what they’re doing, but really don’t.
A brief rundown of the facts: the plaintiff is a high school student, Peter B. Parker, who alleged that during a class field trip to The Banner Collection, a prominent midtown museum, he was stung by a rare and poisonous insect in the museum’s animal research facility. Named as defendants are the Collection’s owner (Crown), and its former Director of Operations, Dr. Diana T. Prince.
On the surface, a fairly straightforward personal injury claim. Things got more complicated in light of Prince’s departure from New York shortly before the suit was filed, to accept a position as Curator of Antiquities at the new Wayne-Kent Institute in her native Athens. Crown waived service (as it must under FRCP 4(d)), but Parker’s attorney served Prince at the museum in Greece via FedEx.
When Prince failed to appear, the court granted Parker’s motion for default judgment, and proceeded to trial against the museum. A jury found that the museum was negligent in allowing a class of high schoolers into a research laboratory, but found that the plaintiff’s own negligence far outweighed that of the museum.
After the verdict, Prince read about the case in a trade magazine circulated to museum curators around the world, and hired counsel in New York to revisit the claim against her. In their motion to set aside the default, Prince’s lawyers made several arguments, all of which I see as pretty solid.
- First, Parker presented no proof of actual delivery to Prince herself—only a printout from FedEx indicating that the parcel sent by counsel was left in the Wayne-Kent Institute’s mail room. Lacking any demonstration that she had received the notice, her attorneys argued, the service attempt should be quashed and the default judgment thrown out.
- Second, Prince’s lawyers pointed to the FedEx dispatch itself as deficient. FRCP 4(f)(2)(C)(ii) requires that, where a treaty allows but doesn’t specify a means of notice, service by mail is valid if the Clerk of Court addresses & sends the documents, with a signed delivery receipt required. Parker’s counsel sent it directly from their office and provided no signature whatsoever.
- Third, even if Parker had properly observed 4(f)(2)(C)(ii), Greece objects to service by mail under the Hague Service Convention, so the method has no legal effect in the first place.
- Fourth—and this is the one that really gets me, because it’s just sloppy, lazy lawyering at work—although Prince was the Curator of an Athens-based museum, her office and domicile were in Israel, and no attempt was made to locate and serve her there. At all. (In an ironic twist for Parker, Israel doesn’t object to mail service under the Convention!)
In the end, the judge set aside the default based solely on Dr. Prince’s first argument, but admonished plaintiff’s counsel in light of the legal deficiencies laid out in the other three… and assessed Prince’s costs to them. Of course, they could take another bite at the apple, but Prince would still have a couple of fancy Latin terms at her disposal: res judicata, respondeat superior…
Again, this all comes down to very sloppy lawyering by plaintiff’s counsel. Truly, a simple Google search would have told them that, while the defendant was born in Greece, she is an Israeli citizen– she even served two years in the IDF. Had they exercised even a modicum of diligence, they could have served her properly.
Moreover, this case illustrates the importance of client-vetting. These attorneys should have known that their plaintiff, although an orphan, was little more than a whiny kid who didn’t just mitigate his damages– he made a fortune off of them. Media appearances alone have made him millions in the few years since the injury; perhaps Crown has a cause of action against him for unjust enrichment?
* The image above is actually the Museum of Modern Art in New York, which Crown’s owner purchased in 1998 and renamed for an old friend, Dr. Bruce Banner. The facility expanded beyond art and into natural history research shortly thereafter.