Case of the Day: Capozzo v. Mendal

The case of the day is Capozzo v. Mendal, 2011 WL 7029841 (Conn. Super. Ct. Dec. 22, 2011). Capozzo sued Mendal, asserting that Mendal injured her in an automobile collision in New Haven. Mendal resided in the Netherlands, a party to the Hague Service Convention. According to the return of service, a “deputy court bailiff” in Amsterdam left an envelope with the summons and complaint, in English and Dutch, at Mendal’s residence. Capozzo had hired “a firm that routinely assists with international service of process worldwide”, which in turn, hired the bailiff). Mendal moved to dismiss for lack of personal jurisdiction, arguing that the service did not comply with the Convention.

The court rejected Mendal’s argument that Capozzo was required to make use of the Central Authority mechanism, noting that under Article 10(b) of the Convention:

Provided the State of destination does not object, the present Convention shall not interfere with … the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

The Netherlands has not objected to service under Article 10(b). The service was proper under Article 47 of the Code of Civil Procedure of the Netherlands, which provides that the bailiff can make service by leaving a copy of the papers at the defendant’s residence in a sealed envelope if he has been unable to make personal service.

Thus the judge’s decision seems clearly correct. The only possible question is whether a private process serving firm in the US is a “judicial officer, official or other competent person” for purposes of Article 10(b). In federal practice, I think the answer would plainly be “yes”, as any disinterested person over 18 years of age can serve a summons and complaint. I’m not a Connecticut lawyer, so I don’t want to opine too definitely on the question in this case, but the opinion suggests that given the nature of the language, service ordinarily would have had to be effected pursuant to General Statutes § 52-62, which provides that in automobile negligence cases, service is effected through the state’s Commissioner of Motor Vehicles. It’s unclear to me whether the court is saying that compliance with this statute is mandatory in such cases. So I wonder whether a private process server is a “competent person” in the particular circumstances of this case. In non-motor-vehicle cases, it’s not clear to me whether Connecticut permits any disinterested person to serve process or whether, as in Massachusetts, only certain officers (sheriffs and constables, in Massachusetts) can make service without leave of court. Depending on the answer to that question, there could again be a question whether the process server Capozzo hired is a “competent person” for purposes of Article 10(b).

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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