Case of the Day: Holt v. Kormann Rockster Recycler
Posted on April 3, 2012
The case of the day is Holt v. Kormann Rockster Recycler GmbH (Cal. Ct. App. 2012). Holt sued Kormann, an Austrian company, Rockster North America (“RNA”), a Canadian corporation, and Stephane Guerchon, a resident of Montreal. RNA was the North American distributor of Kormann rock crushers in North America, and Guerchon owned RNA. The claim had to do with whether Holt was within his rights to cancel an order for a rock crusher that he had placed with RNA (which, in turn, had placed an order with Kormann).
Holt served process on all three defendants by service on Guerchon. Since Guerchon lived in Canada, a party to the Hague Service Convention, Holt made service via the Canadian central authority. Kormann did not answer the complaint, and Holt sought a default judgment against Kormann, which the court granted. Kormann moved to set aside the judgment on the grounds of insufficient service of process. The judge granted the motion, and Holt appealed.
The court affirmed the order. The decision was plainly correct, as Holt had not complied with the provisions of California law regarding the form of a summons to be used where a plaintiff wants to serve a corporate defendant by service on a purported agent. But I think the court went astray when it suggested that the Hague Service Convention did not apply to the case. It’s true that Kormann is an Austrian company, and Austria is not a party to the Convention. But the key to determining whether the Convention applies is to look to the state where the service is to be effected. Here, Holt tried to make service on Kormann by serving process on a purported agent in Montreal. Because the service was to be made in Canada, and because Canada is a party to the Convention, the Convention did indeed apply. So I think the court was wrong to suggest that “Holt could not effect service on Kormann by serving Guerchon or RNA pursuant to the Hague Service Convention.” The reason the service failed was that the summons did not comply with California law, not that the Holt proceeded under the Convention.