Tag Archives | Alberta

Syncrude Canada Ltd. v. Highland Consulting Group: A Reply to Ted Folkman

By on January 21, 2013 in Hague Service Convention, Service by mail

Cross-posted at The Trial Warrior.

My blawging colleague, Ted Folkman over at Letters Blogatory, has an informative post about Syncrude Canada Ltd. v. Highland Consulting Group, Inc. (D. Md. 2013) a recent Maryland District Court decision dealing with service of process under the Hague Service Convention (“Syncrude”).

In Syncrude, the Plaintiff, Syncrude Canada Ltd. (“Syncrude” or “Plaintiff”) brought an action pursuant to the Maryland Uniform Foreign Money-Judgment Recognition Act, Maryland Code, Courts and Judicial Proceedings, §§ 10-701 et seq. (“the Recognition Act”) against Defendants The Highland Consulting Group Inc. (“HCG”), High Energy Consultants, Inc. (“HEC”), and The Highland Group International GmbH (“HGI”) (collectively “the Highland Defendants”).

On July 26, 2011, Syncrude filed a breach of contract action against the Highland Defendants in the Court of Queen’s Bench of Alberta, Case Number 1103 1134 (“Canadian Litigation”). The Highland Defendants were served via registered mail at their respective principal offices pursuant to the Alberta Rules of Court and the Alberta Business Corporation Act. Bittner signed the return receipts acknowledging service for both Maryland Defendants on August 2, 2011. Raz Walter signed a return receipt on behalf of Highland Group International GmbH on August 3, 2011.

In his post, Ted Folkman observes,

Letters Blogatory readers will be familiar with the quirky split in American decisions on the meaning of Article 10(a) of the Hague Service Convention. Article 10(a) is plainly intended to permit service of process by postal channels unless the state of destination objects, and a majority of American courts have reached that result. But a minority of courts say that Article 10(a) permits only service of documents other than summonses via postal channels, because the English version of the Convention uses the word “send” instead of “serve.” The American cases generally have to do with the validity of service abroad in a US civil action. Today’s case asks about the validity of service in the US in a civil action abroad. Fortunately, the judge, after reviewing the split of authority, came down on the side of all that is good and just and held that Article 10(a) does permit service of process by mail.

In the US cases we’ve reviewed, the next question has been: granted that service by mail is permitted by the Convention, must it also be authorized by the law of the forum (namely, the Federal Rules of Civil Procedure or the state court analogue), and if so, is it authorized? Again, today’s case flips this around, asking whether the service by mail was authorized by the law of Alberta. It was. Rule 11.26(1)(a) of the Alberta Rules of Court permits service “by a method provided by these rules for service of the document in Alberta.” Under Rule 11.9(1)(b) service on a corporation is proper if sent “by recorded mail, addressed to the corporation, to the principal place of business or activity,” and under Rule 11.9(2)(b), the service is effected “on the date the acknowledgment of receipt is signed.” [my emphasis added]

Ted Folkman and I have “agreed to disagree” over the issue of whether the Hague Service Convention is mandatory or permissive with respect to Article 10(a). My own view is that it is mandatory, and the issue is determined by reference to Article 10(b) and whether the Contracting State has filed an objection for service by informal channels, rather than requiring service via the designated Central Authority.
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Case of the Day: Syncrude Canada Ltd. v. Highland Consulting Group

By on January 17, 2013 in Hague Service Convention, Service by mail

The case of the day is Syncrude Canada Ltd. v. Highland Consulting Group, Inc. (D. Md. 2013). Syncrude sued Highland and two affiliates (two were Delaware corporations with offices in Maryland, the third a Swiss company doing business in Switzerland) in the Alberta Court of Queen’s Bench for breach of a consulting contract. The Highland defendants were served with process by registered mail to their principal offices. The Highland defendants defaulted, and Syncrude got a default judgment, which it then sought to enforce in Maryland. By agreement, the parties dismissed the Maryland claim against the Swiss affiliate, leaving the two companies with offices in Maryland as defendants. The parties filed cross-motions for summary judgment. 1 The main issue was service of process.

Letters Blogatory readers will be familiar with the quirky split in American decisions on the meaning of Article 10(a) of the Hague Service Convention. Article 10(a) is plainly intended to permit service of process by postal channels unless the state of destination objects, and a majority of American courts have reached that result. But a minority of courts say that Article 10(a) permits only service of documents other than summonses via postal channels, because the English version of the Convention uses the word “send” instead of “serve.” The American cases generally have to do with the validity of service abroad in a US civil action. Today’s case asks about the validity of service in the US in a civil action abroad. Fortunately, the judge, after reviewing the split of authority, came down on the side of all that is good and just and held that Article 10(a) does permit service of process by mail.

In the US cases we’ve reviewed, the next question has been: granted that service by mail is permitted by the Convention, must it also be authorized by the law of the forum (namely, the Federal Rules of Civil Procedure or the state court analogue), and if so, is it authorized? Again, today’s case flips this around, asking whether the service by mail was authorized by the law of Alberta. It was. Rule 11.26(1)(a) of the Alberta Rules of Court permits service “by a method provided by these rules for service of the document in Alberta.” Under Rule 11.9(1)(b) service on a corporation is proper if sent “by recorded mail, addressed to the corporation, to the principal place of business or activity,” and under Rule 11.9(2)(b), the service is effected “on the date the acknowledgment of receipt is signed.”

Highland raised one final issue: it claimed a denial of due process because the summons was not mailed to a specific person but rather to the corporations, and because it was received by a person not authorized under Maryland law to receive service of process, namely the comptroller, Todd Bittner. But Bittner was on of the signatories of the underlying contract, and there was no question about the corporation’s actual notice of the case. Thus the service was proper.

The only sour note in the decision comes in the judge’s remarks about a requirement that the service comport with Maryland law. It seems to me that Maryland law is irrelevant to the decision. Leaving aside questions of due process and compliance with the Convention, the validity of the service should be determined under the law of the forum.

Notes:

  1. Highland’s motion was a motion to dismiss, but the judge properly treated it as a motion for summary judgment because it required reference to matters outside the pleadings. ↩
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Case of the Day: Chamberlain v. Integraclick, Inc.

By on April 22, 2011 in Uncategorized

The case of the day, Chamberlain v. Integraclick, Inc. (N.D. Fla. 2011), involves an attempt to serve process on a Canadian defendant. I am not a fan of the reasoning in this case. Chamberlain, Newcomer, and Adler, on behalf of themselves and other similarly situated, sued 1021018 Alberta Ltd., d/b/a Just Think Media, an Alberta corporation, and Integraclick, Inc., d/b/a Clickbooth, a Delaware corporation, accusing them of a scheme to defraud consumers on the internet; the details are unimportant. The defendants removed the case from the Leon County (Florida) Circuit Court to the U.S. District Court in Tallahassee. Just Think Media then moved to dismiss for insufficient service of process.

The plaintiffs sent a request for service abroad to the Alberta competent authority requesting service under Article 5(a) of the Hague Service Convention. (Practice pointer: the Applicant identified on the Request is apparently a professional process server. She identified Fed. R. Civ. P. 4(c)(2) as a source of her authority to make an application under the Convention. But how could Rule 4 apply if service was attempted before the case had been removed? She also referenced a “Florida Circuit Court Order”, but without the order attached, I can’t really comment on whether she met the requirement of Article 3, namely, that she be an “authority or judicial officer competent under the law of the State in which the documents originate.” It seems to me that even when it is proper for an attorney or a process server to act as the applicant, it is usually good practice to request appointment of a special process server, or service by the marshal, under Rule 4(c)(3), because in some cases foreign central authorities have objected to letters of request naming U.S. lawyers or process servers as the applicant).

The Alberta authorty’s certificate stated that service had not been made because “no one will accept service of the document.” As I point out below, it appears that the Alberta authority did not do everything it could to effect service under Alberta law.  But that is water under the bridge. The plaintiffs proceeded to serve process on the Florida lawyer who had appeared for both Just Think Media and Clickbooth. 

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