Case of the Day: Chamberlain v. Integraclick, Inc.

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. 

The court rejected Just Think’s motion to dismiss for two reasons. First, it held that Just Think could not complain of failure to make service as required by the Hague Convention when it appeared that Just Think had been ducking service in Alberta: “As Plaintiffs point out, Defendant  should not be permitted to ‘demand that Plaintiffs serve process under the Hague Convention, refuse to accept service when they do, and then cry foul.'” I don’t find this argument persuasive. It seems to me that if you can’t make service under Article 5(a), the appropriate remedy is to use an alternative method of service under Rule 4(f)(2) or (3), not to waive the requirement of service. Nor would the plaintiffs in this case be prejudiced by the court’s insistence on valid service, since another method of service appears readily available. Canada has not objected to service by mail in Hague Convention cases. Alberta law appears to permit service by mail in the circumstance of this case, even if the corporation refuses to accept the mail. I reason as follows. First, under § 20 of the Alberta Business Corporations Act, Just Think must have had a registered office on file with the Alberta government (or else it could not have incorporated). Second, under Section 256 of the BCA, service by registered mail to the registered office is permissible. Third, under Rule 11.2 of the Alberta Rules of Court, “Service by mail or recorded mail is not invalid by reason only that” the addressee refuses the mail or “the addressee no longer resides or is otherwise not present at the address and has not provided the postal service with a current mailing address.” So unless I am misreading the Alberta rules on this—no doubt a distinct possibility—the plaintiffs could easily have effected service that would be valid under Alberta law and thus valid under Rule 4(f)(2)(A).

Second, the court held that service on the law firm that had entered an appearance for Just Think was sufficient because the lawyer was the agent of the client, even though there was no indication that the lawyer had been expressly authorized to accept service of process. This can’t possibly be right, since if it were, no one could ever successfully challenge the adequacy of service of process—service on the lawyer making the challenge would always be sufficient. The general understanding is that U.S. lawyers are not, by virtue of their status as attorneys, agents for receipt of service of process. That’s not to say that the court couldn’t have authorized service of process on the lawyer pursuant to Rule 4(f)(3), but I think the court was wrong to say that as a general matter service on the lawyer is sufficient to effect service on the client.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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