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The case of the day is Haffner International Marketing Group, Inc. v. Sahin (D. Nev. 2013). Haffner was a Nevada corporation in the business of “porcelain, granite, and horse hoof repair.” Sahin lived in Turkey. Haffner hired Sahin in 2006, but in 2011 the relationship ended. Haffner claimed that Sahin then misappropriated its trade secrets. Haffner sued in Nevada and sought to effect service of process on Sahin in Turkey via the Turkish central authority. When the clerk erroneously ordered Haffner to show cause why the case should not be dismissed for failure to serve process within 120 days, Haffner moved for an extension of time and also sought leave to serve process via email.
The court, without much analysis, granted both motions. The motion for an extension of time is unproblematic, and the judge’s decision there was plainly correct. But because Turkey has objected to service via postal channels under Article 10(a), and in the absence of a showing that Turkey has a law on service by email in foreign cases so as to bring Article 19 into play, the Convention forbids service by email. The judge was considering the issue ex parte, so it is, perhaps, not surprising that he would get this wrong, but it’s a mistaken decision that should not be followed.
The case of the day is Monagas v. Samsung Electronics America, Inc. (D. Conn. 2013). The facts of the dispute are not made clear in the decision. Liana Monagas sued Samsung Electronics America, Inc., Samsung Electronics Corp., and Sears Roebuck & Co. in the Connecticut state courts. Samsung Electronics America and Sears removed the case to the District Court, and Monagas moved to remand the case on the grounds that Samsung Electronics Corp. had not joined in the removal.
Ordinarily all defendants must join in a notice of removal, but there is an exception where a defendant has not been “properly joined and served” at the time of the removal. 28 U.S.C. § 1446(b)(2)(A). Here, Monagas had attempted to effect service on Samsung Electronics Corp. in South Korea, but it had done so by mail. Korea, a party to the Hague Service Convention, has objected to service by postal channels. Thus the court held that Samsung had not been properly served, and thus that its consent to the removal was not required. Thus the court denied the motion to remand.
The decision seems correct. There doesn’t seem to be much possibility of abuse here, as there arguably could have been with Gentile v. Biogen IDEC had the case come out the other way. There, the point was that a defendant might be able to remove an otherwise unremovable case simply by filing the notice of removal before the plaintiff was able to effect service of process. Here, the issue isn’t whether anyone could make a removable case unremovable or make an unremovable case removable, but rather just an issue of timing.
The case of the day is LT Game International Ltd. v. DEQ Systems Corp. (D.N.J. 2013). The claim was for patent infringement. DEQ was in Quebec. LT served process by mail, and DEQ moved to quash the service.
The court granted the motion, but not for the reasons you might fear. I’ve previously opined that service by mail in Canada is proper under the Hague Service Convention, notwithstanding the objections of my learned friend Antonin Pribetić. For background, you may want to see a post from March 2012 on the subject. In today’s case, the judge correctly recognized that the Convention poses no problems for service by mail in Canada, since Canada has not objected to service of mail under Article 10(a). But the judge noted, also correctly, that service must also comply with FRCP 4(f) (or to be more precise, since the defendant here was a corporation, FRCP 4(h)). Service by mail is not (in my view, anyway, and in the judge’s view) authorized by FRCP 4(f)(1) because the Convention does not affirmatively authorize service by mail—it merely permits it. Service by mail in this case was not authorized by FRCP 4(f)(2) because the clerk did not send the summons and complaint. Service by mail was not authorized by FRCP 4(f)(3) because LT did not seek leave of court. There is no FRCP 4(f)(4), so the judge correctly determined that the service had to be quashed.