Case of the Day: Sunflower Bank v. H.P. Construction Ltd.

The case of the day is Sunflower Bank, N.A. v. H.P. Construction Ltd. (D. Kan. 2012). The claim was for conversion of construction equipment. HP defaulted, and Sunflower moved for entry of default judgment. The judge wanted to satisfy himself on proper service of process. He wrote that the return of service showed that the document had been served by a process server on a person who acknowledged herself to be an agent for service of process. I don’t see any acknowledgement of the recipient’s status as an agent on the return of process itself, but it seems clear from Exhibit C to the complaint that Sunflower served the summons and complaint at the address of H.P.’s registered agent for service of process in British Columbia. I am assuming without checking that British Columbia provides for service on the registered agent of a corporation.

The judge cited Article 10(b) of the Hague Service Convention as the provision under which the papers were properly served. Article 10(b) provides “judicial officers, officials or other competent persons of the State of origin [may] effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.” This provision is sufficient, since under US laws (at least as reflected in the United States’s responses to Hague Conference questionnaires) US lawyers are competent to transmit documents for service abroad. Article 10(c), which provides for service of process by “any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,” reaches the same result. Canada has not objected to either method.

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 2d ed. 2016), 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.

3 thoughts on “Case of the Day: Sunflower Bank v. H.P. Construction Ltd.

  1. In British Columbia, service of originating process on a receptionist does not constitute valid personal service on a corporation.

    In Molson v. Vitale et al., 1991 CarswellBC 599, 47 C.P.C. (2d) 302 (B.C.S.C.), per Master Horn (In Chambers), the corporate defendant applied under R. 17(12) of the British Columbia Rules of Court to set aside a default judgment with damages to be assessed and costs to be taxed. The corporate defendant applied in the alternative to have the default judgment set aside under R. 2(2)(b) for non-compliance with the Rules of Court, in this case R. 11(2)(b), which governed service on a corporation and provided that service could be effected by leaving a copy of the process “with the manager, cashier, superintendent, treasurer, secretary, clerk or agent of the corporation or any branch or agency of the corporation in the Province.” The writ of summons was served on a receptionist employed by the company who could be described as a secretary in the occupational sense as opposed to being the person holding the office of secretary of the company.

    Master Horn held:

    “20 The affidavit of service by Ms. Sharon Irwin recited that the deponent was informed by the plaintiff’s solicitor, that the registered office of the defendant, Able Bailiffs Ltd. was located at No. 12 — 12240 Horseshoe Way, Richmond, British Columbia. The deponent then says that she “personally served” the defendant, Able Bailiffs Ltd. with the writ of summons, the statement of claim, the notice of motion and the affidavit supporting it, “by leaving two copies of the same with Robyn Patterson, Secretary, at the above address, #12 — 12240 Horseshoe Way, Richmond, B.C., this address being the registered office of the said defendant, Able Bailiffs Ltd.” If such infor-mation was given to Ms. Sharon Irwin, it was incorrect. The registered office of Able Bailiffs Ltd. was, and has been for a number of years, the offices of a firm of solicitors in Vancouver.

    26 But the Rules do not, in my view, permit service on any person in the employ of a corpo-ration who could loosely be described as a cashier or a secretary or a clerk or an agent. The Rules permit service on “the secretary”, “the cashier”, “the clerk”, and “the agent.” The Rule, with un-changed wording, goes back to The Process in Courts of Law at Westminster Act of 1832 (U.K.), 2 & 3 Will. 4, c. 39, s. 13, at which time a secretary of a corporation was a very grand person, per-forming functions quite unlike those which Ms. Patterson carries out. The Oxford English Dic-tionary defines “secretary” in the way in which it must have been employed in 1832, as “one whose office it is to write for another; especially one who is employed to conduct correspondence, to keep records and to transact other business for persons or for a society, corporation or public body.” Rule 11(2)(b) assumes that in the case of a commercial corporation, there is only one person in the organization (or one person in a branch or agency of the organization) who answers to the de-scription of the clerk or the secretary or the agent. The Rule also assumes that such a person has such status and responsibility in the organization that she or he can be expected to react properly to the receipt of a writ of summons. (Royal Trust Co. v. Spillers Canadian Milling Co., [1931] 2 W.W.R. 841, 25 Alta. L.R. 542, [1931] 4 D.L.R. 430 (C.A.))

    27 Upon similar Rules or statutes, it was held that service on a clerk in the office of the sec-retary of a corporation was not sufficient (Walton v. Universal Salvage Co. (1847), 153 E.R. 1260), and that service on a booking clerk at a railway station was not sufficient service on a railway company (Mackereth v. Glasgow & South Western Railway Co., [1873] L.R. 8 Exch. 149, 21 W.R. 339), and that service on a receptionist was not sufficient under the Federal Court Rules (Mona Lisa Inc. v. “Carola Reith” (The), [1979] 2 F.C. 633, 100 D.L.R. (3d) 69 (T.D.)).

    28 I find that service was not properly effected on the defendant, Able Bailiffs Ltd., and, for this reason, the judgment should be set aside.”

    1. Thanks, Nino, for the detailed comment. As I understand what happened in this case, the documents were not served on a receptionist working for the defendant, but for some secretarial or administrative person working for the defendant’s registered agent for service of process. Does that make a difference in your analysis? (I don’t know whether Canadian firms use an entity like CT Corp. as a registered agent, as they do here, but in CT Corp. cases, the process server leaves the paper with a CT Corp. clerk and does not seek out an officer of CT Corp.

      1. A receptionist, secretary or administrative person are functionally equivalent. Only directors, officers, registered agents, or individuals who appear to be in management or control of the corporation are able to admit service. Corporations may designate any entity to be a registered agent, so I imagine that companies like CT Corp. operate in B.C. to act in this capacity.

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