2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-13-2015

Braverman & Kaskey v. Maya Toidze

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Recommended Citation

"Braverman & Kaskey v. Maya Toidze" (2015). 2015 Decisions. Paper 45.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-4715

_____________

BRAVERMAN KASKEY, P.C.

v.

MAYA TOIDZE,

 Appellant 

_____________ 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-09-cv-03470)

District Judge: Honorable Cynthia M. Rufe

__________________________

Submitted Under Third Circuit L.A.R. 34.1(a)

October 2, 2014

Before: AMBRO, CHAGARES, and VANASKIE, Circuit Judges

(Filed: January 13, 2015)

_____________

OPINION*

_____________

VANASKIE, Circuit Judge

Appellant Maya Toidze appeals the District Court’s order denying her motion to 

vacate a default judgment. Toidze, a Russian national who previously resided in Canada,

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
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claims that Appellee Braverman Kaskey, P.C., (“BK”) failed to properly serve process on 

her and the District Court erred by allowing service by publication in the area of her last 

known address. Moreover, she argues that the District Court lacked personal jurisdiction 

over her. We conclude that the District Court correctly authorized BK to make service 

via publication and properly exercised personal jurisdiction. Accordingly, we will affirm. 

I.

The genesis of this matter was a battle for control of “Maya’s Meals,” a company 

owned by Toidze, Peter Cooke, and other investors that produced a dough product 

developed by Toidze. In April 2007, Cooke sued Toidze (among others) in the Superior 

Court at Stamford, Connecticut (the “Connecticut Action”). That suit was removed to the 

District Court in Connecticut on May 4, 2007. Later that month, Toidze met with 

representatives of BK, a law firm and professional corporation incorporated in 

Pennsylvania and located in Philadelphia. During that meeting, Toidze signed a retainer 

agreement authorizing BK to represent her in the Connecticut Action. In return, Toidze 

agreed to pay one percent of all equity interests in Maya’s Meals for each $20,000 of 

billable time incurred by BK. The agreement further required that Toidze reimburse BK 

for all out-of-pocket litigation expenses advanced within 30 days of billing. 

Between May 2007 and July 2008, BK represented Toidze in the Connecticut 

Action, incurring $350,324.50 in billable time and $26,951.45 in out-of-pocket costs, for 

a total of $377,275.95. During this time, BK negotiated two possible settlement 

agreements, one in June 2007 and a second in late spring 2008; however, Toidze refused 
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to sign off on either. After Toidze rejected the second proposed settlement, BK perceived 

an irreconcilable conflict and moved to withdraw as counsel. On July 21, 2008, BK’s 

motion to withdraw was granted.

In July 2009, the instant case commenced when BK filed suit against Toidze in the 

Eastern District of Pennsylvania for non-payment of legal fees and costs. The complaint 

alleged that Toidze was a citizen of Canada and that she resided in Markham, Ontario. 

However, unbeknownst to BK, Toidze had returned to Russia. Between August and 

November 2009, BK attempted to serve original process of the summons and complaint 

by hand delivery at her Canadian address, but those efforts were unsuccessful. The 

individual living at the residence claimed Toidze had moved. BK then tried to serve 

process at her son’s address in Richmond Hill, Ontario, a town adjacent to Markham. 

Her son confirmed that Toidze had moved approximately three months earlier, but did 

not disclose her new address. Nonetheless, as late as October 8, 2010, Toidze, then 

proceeding pro se in the Connecticut Action, filed a “Reply to Plaintiff’s Motion for 

Entry of Default,” indicating that she lived at her son’s address in Richmond Hill. Cook 

v. Toidze, 950 F. Supp. 2d 386, 394 (D. Conn. 2013). That filing also specified two email 

addresses for Toidze: moriland@rogers.com and mayatoidze@rogers.com. Id. 

BK next sought to serve process on Toidze by registered mail, return receipt 

requested, via the U.S. Postal Service and the Canada Post Corporation, but that method 

was unsuccessful as well. After contacting Canadian Post authorities, BK learned that 

Toidze had moved and her mail forwarding account had expired. Due to the expiration of 
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the forwarding account, the Canadian Post authorities could not disclose any information 

concerning her new address because of security protocols. BK then sought to locate 

Toidze by utilizing several internet phone and address record databases based in both the 

United States and Canada. Additionally, BK endeavored to contact Toidze using a cell 

phone number and the email addresses she provided during the course of the Connecticut 

Action. All of these efforts failed to uncover Toidze’s new address or location. 

On December 29, 2009, BK filed a motion pursuant to Fed. R. Civ. P. 4(e)(1) for 

alternative service by publication upon Toidze. The District Court granted that motion on 

March 4, 2010, finding that BK “has made a good faith and practical effort to locate and 

serve Defendant Maya Toidze in the regular course.” (App. at 1.) In March 2010, the 

appropriate notices were printed on two different days in the Markham Economist & Sun, 

a newspaper of general circulation at Toidze’s last known address, and once in The Legal 

Intelligencer, a newspaper of general circulation in Philadelphia. Again, Toidze failed to 

respond to BK’s complaint. 

In May 2010, BK requested entry of Toidze’s default, which the Clerk of Court 

granted on May 11, 2010. In August 2010, BK moved for entry of default judgment 

pursuant to Fed. R. Civ. P. 55(b)(2). As relief, BK sought transfer of a 17.52% equity 

interest in Maya’s Meals or, in the alternative, $377,275.95 in damages based upon a 

quantum meruit theory. In a Memorandum and Order dated November 4, 2010, the 

District Court found that the still-pending Connecticut Action presented “questions 

regarding the appropriateness of . . . compelling Toidze to transfer a 17.52% equity 
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interest in Maya’s Meals to BK.” (App. at 5.) Accordingly, the District Court ordered 

BK to file a memorandum addressing, inter alia, the nature of the relief requested in the 

Connecticut Action and whether any of the parties to the Connecticut Action were 

necessary parties to this litigation. Notably, the District Court also directed BK to file a 

copy of its November 4th Order in the Connecticut Action and to provide a copy of that 

order to all parties to that action, including Toidze. BK complied with this directive by 

sending the Order, along with its complaint in this action, the summons, and its motion 

for default judgment to Toidze at both the physical and email addresses that Toidze had 

provided in the pro se brief she had filed in the Connecticut Action in October of 2010.

On October 11, 2011, the District Court denied BK’s claim to an equity interest in 

Maya’s Meals, but granted default judgement on BK’s quantum meruit theory. On 

February 22, 2012, after referring the case to a Magistrate Judge to conduct a hearing on 

the amount of damages to be awarded, the District Court entered judgment in BK’s favor

in the full amount sought, $377,275.95. 

Almost a year later on February 14, 2013, Toidze filed a Motion to Vacate 

Judgment pursuant to Fed. R. Civ. P. 55(c) and 60(b) claiming that: (1) publication in 

Canada was improper and conducted either in error or bad faith; (2) service in Russia, 

where she resided at the time this suit initiated, is governed by the Hague Convention and 

must be executed by the Russian Ministry of Justice; (3) the District Court lacked

personal jurisdiction over her; and (4) if jurisdiction was proper, then the judgement 

should be vacated and service completed as per the requirements of the Hague 
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Convention. The motion was referred to a Magistrate Judge, who recommended it be 

denied. The District Court adopted the Magistrate Judge’s recommendation over 

Toidze’s objections, finding that it had personal jurisdiction over Toidze, that service was 

proper and complied with due process, and that she had failed to present sufficient 

evidence to justify vacating the default judgment. This appeal followed. 

II.

The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction 

under 28 U.S.C. § 1291. Where, as here, a party claims that the District Court lacked 

personal jurisdiction over her and that an entry of default judgment is void pursuant to 

Rule 60(b)(4) because the complaint was never properly served, our review is plenary.

See Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008); Pinker v. Roche 

Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002); United States v. One Toshiba Color 

Television, 213 F.3d 147, 156 (3d Cir. 2000). In all other respects, we review the District 

Court’s denial of Toidze’s Rule 55(c), 60(b)(3), and 60(b)(6) motions for abuse of 

discretion. Budget Blinds, 536 F.3d at 251; Farnese v. Bagnasco, 687 F.2d 761, 765 (3d 

Cir. 1982). 

III.

Toidze first contends the District Court lacked personal jurisdiction over her. 

Because BK relies on specific jurisdiction only, we must determine whether BK’s “claim 

is related to or arises out of [Toidze’s] contacts with the forum.” Dollar Sav. Bank v. 

First Sec. Bank of Utah, N.A., 746 F.2d 208, 211 (3d Cir. 1984). 
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This breach of contract action stems from Toidze’s retainer agreement with, and 

year-long legal representation by, a Philadelphia law firm. We agree with the District 

Court that personal jurisdiction is proper because Toidze met with BK’s lawyers in 

Philadelphia on multiple occasions, signed a retainer agreement with BK knowing it was 

a Philadelphia law firm, and communicated extensively with BK in connection with the

Connecticut Action. Accordingly, the District Court properly exercised personal 

jurisdiction over Toidze. 

Turning to Toidze’s claim of deficient service of process, Fed. R. Civ. P. 4(f) 

governs the service of individuals located outside of the United States. It permits service 

of process to be accomplished “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 Extrajudicial Documents [in Civil and Commercial 

Matters]”, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. When a defendant’s address 

is unknown, as is the case here, the Hague Convention “shall not apply.” Id. In this 

context, Rule 4(f)(2) dictates that service may be effectuated “by a method that is 

reasonably calculated to give notice . . . as prescribed by the foreign country’s law for 

service.” Both under the Federal Rules of Canada and the Rules of Civil Procedure for 

Ontario Courts, service upon an individual is satisfied by personal service. Can. Fed. Cts. 

R. 128; Ontario Sup. Ct. J. R. Civ. P. 16.02. Nevertheless, when personal service “cannot 

practicably be effected,” the court may order substitute service. Can. Fed. Cts. R. 136; 

see Ontario Sup. Ct. J. R. Civ. P. 16.04 (when “it is impractical for any reason to effect
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prompt service of an originating process or any other document required to be served 

personally or by an alternative to personal service under these rules,” a court may order 

alternative service). Such service has been explained by Ontario courts to “include 

publication in a newspaper in the defendant’s locality.” CGC Holding Co., LLC v. 

Hutchens, No. 11-CV-01012, 2011 WL 2559807, *3 (D. Colo. June 28, 2011) (quoting

Niemi v. W. Assurance Co., 2011 ONSC 958, para. 9 (Can. Ont. Sup. Ct. J.)); Chambers 

v. Muslim (2007), 87 O.R. 3d 784, para. 13 (Sup. Ct.). 

In this case, service of process by publication was reasonably calculated to provide 

Toidze notice. She has failed to produce any evidence that would indicate BK knew or 

reasonably should have known she had moved to Russia. BK attempted to personally 

serve her at her last known Canadian address and her son’s address. Toidze represented

in the Connecticut Action that she lived at her son’s address in Richmond Hill, Canada. 

Additionally, queries to the Canadian Post authorities, internet searches, emails, and cell 

phone calls all yielded negative results. 

At oral argument before the District Court, Toidze’s counsel conceded that BK, 

“in good faith, thought that [Toidze] resided in Canada. Otherwise, they wouldn’t have 

attempted to serve process in Canada.” (App. at 73-74.) Although Toidze argues that

several individuals knew she had moved to Russia, no credible evidence, save for her

bare assertions, has been presented to support this claim. We agree with the District 

Court that BK made good faith and practical efforts to personally serve Toidze, and the 
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alternative service by publication at her last known address, authorized by Canadian law, 

was reasonably calculated to provide her notice. 

Toidze also argues that the default judgment should be vacated under Rule 55(c). 

As recognized by the District Court, we consider that argument in light of the factors 

announced in Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985), 

which include “(1) whether the plaintiff will be prejudiced; (2) whether the defendant has 

a meritorious defense; and (3) whether the default was the result of the defendant's 

culpable conduct.” We agree that vacating the judgment would prejudice BK given the 

age of this case. We also agree that Toidze does not have a meritorious defense. Finally, 

we do not discern error in the District Court’s finding that her default was intentional. In 

finding her conduct in ignoring this action to be culpable and not merely negligent, the 

District Court noted that BK emailed Toidze at mayatoidze@gmail.com in an attempt to 

notify her of the pending litigation. Despite her claim that this email address was 

“abandoned,” her present counsel used that address to communicate with her in 

September 2012, long after BK had emailed Toidze at the same address in November of 

2010. (App. at 119.) The District Court did not abuse its discretion in denying Toidze’s 

Rule 55(c) motion to vacate the default judgment. 

Toidze further contends that she is entitled to relief under Rule 60(b)(3). That rule 

allows the court to vacate a judgment that has been obtained through fraud or other 

misconduct and such misconduct “prevented [her] from fully and fairly presenting [her]

case.” Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983). We agree with the 
10

District Court that she did not demonstrate “that the alleged problems with [BK]’s 

representation in the Connecticut [Action] in any way impacted her ability to participate 

in and present her case.” (App. at 118.) 

Toidze’s final argument is that the default judgment will result in a significant 

hardship because BK’s services “had negative value” and “judgments by default are not 

favored.” (Appellant’s Br. at 46-47.) “Rule 60(b)(6) relief from judgment is only 

granted in extraordinary circumstances. It is available where the party seeking relief 

demonstrates that extreme and unexpected hardship will result absent such relief.” 

Jackson v. Danberg, 656 F.3d 157, 165-66 (3d Cir. 2011) (citations and quotations 

omitted). No extraordinary circumstances exist in this case to justify vacating the default 

judgment. We are satisfied that the District Court did not abuse its discretion in denying 

Toidze’s motion to vacate pursuant to Rule 60(b)(3) and 60(b)(6). 

IV.

For the reasons discussed above, we will affirm the District Court’s order denying 

Toidze’s motion to vacate the default judgment.