Case of the Day: Dyer v. Can-Truck, Inc.
Posted on July 5, 2011
In the case of the day, Dyer v. Can-Truck, Inc. (N.D. Ohio 2011), Frank Dyer alleged that while he was riding a motorcycle near Lima, Ohio, he was injured when struck by a truck driven by Jaswinder Sekhon and owned by Can-Truck, Inc. Sekhon resided in Ontario, and Can-Truck had its place of business there.
Dyer began by trying to serve process via process server. The defendants answered and asserted insufficiency of service of process as an affirmative defense. The judge “encouraged the parties to amicably resolve the service issue,” but they couldn’t. Dyer therefore sought and received leave under Rule 4(f) to serve Can-Truck by email to its counsel, an Ohio lawyer. Dyer sought to serve Sekhon by registered mail at his last known address, but the mail was returned, marked “return to sender” and “unknown.” He also sought to serve Sekhon by serving the Secretary of State under Rule 4(e)(2)(C) and an Ohio statute appointing the Secretary as the agent for service of process on nonresident operators of motor vehicles. The statute requires, in addition to service on the Secretary, that the plaintiff send a copy of the documents by registered mail to the defendant at his “last known address,” and it requires that the return receipt “be attached to and made a part of the return of service of such process.”
On the defendants’ motion to dismiss, the court correctly rejected Can-Truck’s arguments that the Hague Service Convention forbade service by email, noting that the Convention only applies when a document is transmitted abroad, which did not occur here.
The court held that the service on Sekhon was also proper, as the Ohio statute did not require actual notice to the defendant. To be sure, if Sekhon had not appeared (through his lawyer) in the case, there might be an issue under Article 15 of the Convention as to Dyer’s entitlement to a default judgment in the circumstances: Article 15 requires that the summons be “actually delivered” to the defendant’s “residence”, but it’s not entirely clear that this happened here. However, Article 15 applies only where the defendant has not appeared in the case.