The case of the day is Ackourley v. Noblehouse Custom Tailors (E.D. Pa. 2013). The plaintiff, Richard Ackourey, sued Noblehouse Custom Tailors, a Hong Kong firm, and its owner, Vijay Wadwahani, for copyright infringement. The court dismissed the action for failure to serve process, and Ackourley moved to reopen the case, stating that he had served the complaint by certified mail, return receipt requested but had not yet received the proof of service because he had not yet received the return receipt. The court correctly recognized that the failure to file the return of service until after the case was dismissed was not fatal, because under FRCP 4(l)(3), “Failure to prove service does not affect the validity of service.” Still, the court considered whether the method of service was valid. The court got this right on all points. First, the Hague Service Convention applies to Hong Kong. Second, Article 10(a) permits service of process by mail. Third, although China has objected to service by mail, Hong Kong has not. The court therefore correctly granted the motion to vacate the dismissal. Easy.
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. 1 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.
The case of the day is Loeb ex rel. Universal Travel Group v. First Judicial District Court (Nev. 2013). Loeb brought a shareholder derivative action on behalf of Universal Travel Group against its officers and director, Jiangping Jiang, Jiang Xie, Hujie Gao, Jiduan Yuan, Lizong Wang, Wenbin An, Lawrence Lee, Yizhao Zhang, and Liquan Wang, all of whom reside in China. Universal refused to disclose their addresses to Loeb’s lawyers, and Loeb sought leave to serve by publication. Under Nevada law (in particular Nev. R. Civ. P. 4(e)(1)(i)), when a defendant’s address is known, service by publication is permissible in some cases, but the plaintiff must also mail the documents to the defendant. After Loeb filed his motion, Universal did disclose the addresses. The District Court denied the motion, and Loeb petitioned the Nevada Supreme Court for a writ of mandamus.
The court denied the petition. The decision is clearly correct, because under the law of the forum the service was not complete until the plaintiff both published the notice and mailed the documents to the defendant. I would have addressed the issue a little differently than the Nevada court did. It seems to me that the real issue is that China objects to service by postal channels. In a country that had not made such an objection, it would seems that service by publication would be entirely consistent with the Convention. The court did not address service by postal channels under Article 10(a) at all, which is curious.