Service of Process at the CIT: Part II

This is the second decision involving whether the United States properly served a summons and complaint on Chu-Chiang "Kevin" Ho, one of the defendants in a penalty case. The alleged violation  is the false description of imported HID headlight kits. The kits are not admissible merchandise because they violate U.S. Department of Transportation safety rules. On the entry documents, the merchandise was described as ballasts for interior track lights. 

Assuming the truth of that allegation, the question remains whether Mr. Ho was properly served. Without proper service the Court of International Trade does not have person jurisdiction over him and the case cannot proceed. The rules related to this are covered in the prior post. Here, we are dealing with an opinion involving a separate but related case. This decision is slip opinion 20-66.

The principal question presented is whether the process server hired by the government successfully served Mr. Ho at his home. The facts are that the server tried to serve Mr. Ho at his residence in April 2019 but incorrectly provided two copies of the complaint and not one of the summons and one of the complaint. This is technically defective under California law, which controls in these matters. The process server tried several more time in May. Finally, on June 1, 2019, the process server went to Mr. Ho's door. Something happened there and the process server left the documents on the ground. What happened is a critical question of fact.

Proving that proper service occurred is the responsibility of the plaintiff. The plaintiff must show that the documents were delivered to the defendant. The defendant, knowing he or she is being served, may not evade service by refusing to take the papers (despite what you may have seen on TV). Once it is clear that the defendant knows he or she is being served and is evading service, the process server may leave the documents in a place that is obvious and likely to come to the attention of the defendant. 

According to the process server, he went to Mr. Ho's residence and knocked on the door. Mr. Ho answered, recognized that he was being served and closed the door. At that point, the server left the documents at the door. Interestingly, there is video evidence of the alleged transaction. In one video, the process server is shown at the door and allegedly reacting to Mr. Ho, who is never seen. The government relies on the body language of the process server as evidence of an interaction with Mr. Ho that justifies a finding that he evaded service. 

The defendant produced a second video from a Ring doorbell system and alleges that it confirms that Mr. Ho did not open the door. The government claims that the video was edited to not show the process server reacting to Mr. Ho.

Mr. Ho also produced evidence showing he was not home at the time the process server attempted to make service and left the papers. 

What we have here are two conflicting descriptions of a set of events, both of which cannot be simultaneously true. In other words, someone is probably lying (or possibly grossly incorrect about what happened). As is his way, Judge Reif set the tone for this conclusion by quoting Mario Puzzo from the Godfather, to wit: "We are all honorable men here, we do not have to give each other assurances as if we were lawyers." 

Based on its review of the video evidence and the other testimony, the Court concluded that Mr. Ho was not home at the time of the attempted service. Thus, the government failed to carry its burden to prove successful service. As a result, the Court granted defendant's motion to quash the service.

Doing so, the Judge turned to another source of legal wisdom, the Homeland  television series. There, he quotes the interrogation of a recovered prisoner of war. When asked what the former prisoner tells those who ask about his captivity, he replies, "I lie. Tell them stories they want to hear." While the Court did not have to make a finding as to the truthfulness of the process server's account of the events, this fictional colloquy certainly colors the overall decision and result.

As to the result, as we learned in the prior post, the Court does not lack discretionary powers to fix this mess. Finding a high degree of prejudice to the United States and that the defect in service is easily curable, the Court granted the government an additional 60 days in which to complete service. If service is not properly completed in that time, the case will be dismissed as to the defendant. 


Popular posts from this blog

CAFC Decision in Double Invoicing Case

Target on Finality

Counter-Counterclaim Decision