Case of the Day: Schiff v. Hurwitz

The case of the day is Schiff v. Hurwitz (W.D. Pa. 2012). Schiff was a patient of Dr. Hurwitz, who performed the “BodyTite Procedure” on Schiff. Personally, I would not recommend any medical procedure with a purposely misspelled word in the name, but that’s just me. Schiff used a medical device manufactured by Invasix in the procedure. The decision doesn’t really spell out the facts relevant to the service of process issue, but it appears that Schiff had tried to serve process on the defendants in Canada and Israel, both parties to the Hague Service Convention, by mail. The decision is somewhat oddly reasoned, but the bottom line is that the judge joined the great majority of rightly decided cases holding that Article 10 of the Convention does indeed authorize service of process by mail.

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.

6 thoughts on “Case of the Day: Schiff v. Hurwitz

  1. Ted,

    Please refer to the following responses made on behalf of Canada (and the relevant provincial Central Authorities) contained in the Hague Conference on Private International Law (HCCH) SYNOPSIS OF RESPONSES TO THE QUESTIONNAIRE OF JULY 2008 RELATING TO THE HAGUE CONVENTION OF 15 NOVEMBER 1965 ON THE SERVICE ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS (SERVICE CONVENTION) [Permanent Bureau, Prel. Doc. No 7 January 2009] available at: http://www.hcch.net/upload/wop/2008synopsis14.pdf

    29(a)(i). What
    methods are
    used in your
    State?

    “Canada (Alberta) – Alberta’s Rules of Court state personal service on an individual. Personal service on a corporation is effected by leaving a copy with someone who works with the corporation. See copy of Alberta Rules of Court 390/68.
    Canada (British Columbia) – Personal service, service on a corporate officer or on an officer of an unincorporated association, or service on a corporation at the registered office of the corporation, pursuant to Rules 11 and 12 and the Business Corporations Act
    Canada (Manitoba) – Under Manitoba’s Queen’s Bench Rules, an originating process must be served personally. For entities, service must be made on specified representatives. After the originating process has been filed and served, subsequent documents can be served by a variety of alternatives to personal service, including acceptance by lawyer, and service by registered mail with acknowledgment of receipt.
    Canada (Ontario) – In Ontario we serve by personal delivery by any person. The Central
    Authority generally uses a public officer to make service. Service on a corporation is normally done on an officer or director of the corporation.
    Canada (Prince Edward Island) – Personal service, service on a corporate officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business, pursuant to Rule 16.02(1)(c).
    Canada (Quebec) – In Quebec, the normal procedure is personal service by a bailiff who delivers a copy of the document to the recipient. Documents may also be served by leaving a copy at the domicile or residence of the recipient in the care of a reasonable person who resides there. Documents may be served on a legal person (corporation) at its head office, at one of its establishments in Quebec or at the establishment of its agent in the district where the cause of action arose, speaking to one of its senior officers or to a person in charge of the said establishment (s. 120 et seq. of the Code of Civil Procedure). Notification may be made by delivering the notice to the person to be notified and obtaining a receipt therefor or by registered or certified mail. Notification may be made by regular mail or by any other means of communication where the context does not require the sender to obtain proof of sending (s. 146.1 to 146.3 of the Code of Civil Procedure).” (at pp. 38-40)

    29(a)(ii). What
    is the default
    method in your
    State?

    “Canada (Alberta) – Personal service only (see above). Serving by post or leaving documents with a friend or neighbour is not considered “good” service.
    Canada (British Columbia) – Personal service, or sub service at residential address, or personal service on corporation. All documents are served by a sheriff or deputy sheriff.
    Canada (Manitoba) – Personal service.
    Canada (Ontario) – We serve by having a public officer deliver the documents in person.
    Canada (Prince Edward Island) – Personal service, or sub service at residential address, or personal service on corporation. All documents are served by a sheriff or deputy sheriff.
    Canada (Quebec) – The Central Authority of Quebec proceeds with service in accordance with the method of personal service by bailiff because it is the method generally used in the territory.For notification, the Central Authority of Quebec uses the mail (certified mail, with proof of mailing).” (at pp. 47)

    29(c)(i). Does
    the law of your
    State provide for
    informal
    delivery?

    “Canada (British Columbia) – By mail, only when contact with recipient has been made and they agree to accept the documents.
    Canada (Ontario) -The law allows a party to accept service of documents but does not provide any formal process for this to happen. Acceptance of service would be a matter of proof, an element of showing that service had been made. Without knowing that there would be consent, we would not count on any such thing; we would have our agent make personal service in the usual way.” (at p. 57)

    41. If your State
    opposes Art
    10(a):

    41(a). Why?

    “Canada (Alberta) – Alberta Rules of Court state “personal” service.
    Canada (Prince Edward Island) – PEI Rules of Civil Procedure state “personal” service.” (at p. 86)

    Furthermore, please also refer to the HCCH SUMMARY OF RESPONSES TO THE QUESTIONNAIRE OF JULY 2008 RELATING TO THE SERVICE CONVENTION, WITH ANALYTICAL COMMENTS (SUMMARY AND ANALYSIS DOCUMENT) (Permanent Bureau, Prel. Doc. No 14, January 2009) available at: http://www.hcch.net/upload/wop/2008pd14e.pdf:

    “188. Five States, all of whom oppose the use of the postal channel in accordance with
    Article 10 a), reported that they did not use this channel of transmission to send judicial
    documents abroad for service by mail. 259

    “[fn.]259 Argentina, Bulgaria, Canada (Alberta, Ontario, Prince Edward Island), Turkey, United Kingdom.” (at p. 45)

    Regards,

    Antonin

    1. Thanks, Nino! The decision doesn’t focus on whether service by mail is permissible in Canada, and without looking at the underlying briefs, I’m not sure whether the parties raised that as an issue. Instead, the decision is focused on the question whether Article 10(a), which permits parties to “send” documents by postal channels, permits parties to serve process by mail, or instead permits parties only to send judicial documents other than summonses by mail. On that point, there is or should be no dispute—Article 10(a) should be read to apply to service of process as well as service of other documents. This is so even if you’re right about whether Canada has objected to Article 10(a).

      1. Ted,

        We continue to talk at cross-purposes.

        I acknowledge that the prevailing American case law interprets Article 10(a) to mean that service by postal channels (i.e. regular or registered mail) is valid service of process under U.S. federal and/or state law. Whether this is a correct interpretation will ultimately be decided if and when a judgment obtained via service by mail is sought to be enforced in an objecting State.

        However, this does not otherwise validate the service of process under the Hague Service Convention in the objecting State where the Defendant is served and resides. If, for example, in an ordinary case involving two Ontario residents, the plaintiff attempted service of process by mail (without leave or an order for substituted service or otherwise authorized by the Ontario Rules of Civil Procedure), an Ontario court would find that the service on the Ontario defendant was invalid and set it aside. To accept that, on the one hand, the Hague Service Convention allows for service by mail, while, on the other hand, the Ontario Rules do not, leads to an absurd result.

        Antonin

        1. Well, I don’t think the result is absurd. To say that service by mail is permissible under the Convention is simply to say that the foreign court (say a US court) can proceed against the Canadian defendant. It says nothing about whether Canada will recognize and enforce the judgment. We’ve discussed this issue to death, but just to summarize my view:

          1. Although various Canadian provinces have indicated, in questionnaires and the like, that they oppose service by postal channels, Canada’s position seems unambiguous: “Canada does not object to service by postal channels.” Canada, not any of its provinces, is the party to the Convention, and so it seems to me that the provinces’ informal objections to service by mail (I say “informal” because as far as I know no province has done what the Convention requires to make an Article 10(a) objection, namely give notice to the Ministry of Foreign Affairs of the Netherlands) are not effective.

          2. It may be that the courts in some of the provinces will not recognize or enforce a judgment where service of process was based on service by mail. I don’t know why they would do that (see point (3), below), but suppose they did. That fact has nothing to do with the US court’s ability to hear the case against the Canadian. So if, for example, the Canadian had property in the US, then the US plaintiff could enforce the US judgment against that property even if the Canadian court would not recognize and enforce the judgment.

          3. Assuming that you’re right about a court in Canada refusing to recognize or enforce a US judgment in such cases, I don’t really see a strong reason why that should be the law. The purpose of the Convention, and, I would say, the purpose of service of process in general, is to provide the defendant with sufficient notice to permit him to defend the action. It is analytically distinct from personal jurisdiction. (That is, a court can and frequently does lack personal jurisdiction even over a defendant who was properly served—I assume that’s true in Canada as it is in the US). So what’s the issue, really? Why should anyone be concerned to argue that service by mail under Article 10(a) is a problem? In other words, is it really absurd to permit methods of service in international cases that are not permitted in domestic cases?

          Always fun batting this around!

  2. Ted

    I’d be interested if you would point me to where in the Hague Service Convention or the travaux préparatoires the term “service of process” is included in the definition or meaning of “postal channels”.

    With respect to your third point above: the reason why service by mail of originating process is deficient should be self-evident: People move and don’t leave forwarding addresses; mailing addresses may be incorrect (e.g. Suite 08 vs. PH 08 which happens to me all the time); mail gets delivered to the wrong address, etc.

    Personal service is the standard for service of process for the reason you state: “The purpose of the Convention, and, I would say, the purpose of service of process in general, is to provide the defendant with sufficient notice to permit him to defend the action.”

    uming that the only scenario is where the defendant has responded or challenged the jurisdiction. This is of no moment. The real issue is where invalid service by mail results in a default judgment. I have had at least 4 cases in the last couple of years where default judgment issued in the foreign jurisdiction following service by mail to the wrong address. While personal jurisdiction is not, per se, established by service ex juris, you are pres

    Finally, if you do not see the inherent contradiction in allowing service of process by mail under the Hague Service Convention, in contravention of domestic service rules, then any further discussion is academic.

    Antonin

    1. Nino,

      I think you’re no longer asking about the effect of the internal law of Canadian provinces, but instead asking why I think Article 10(a) permits service of process at all. I would cite the Hague Conference’s Practical Handbook on the Operation of the Hague Convention, which is not available online but which states that the drafters intended Article 10 to apply to service of process. Risteau’s treatise says the same thing, with reference to the Rapporteur’s report on the final text of the Convention. It’s interesting to me that you pose the question, because it has been primarily if not exclusively American courts that have expressed any doubt about whether Article 10(a) permits service of process.

      You are right to be worried about faulty service by mail and resulting default judgment. I would point out that the Convention expressly permits default judgments in similarly ambiguous circumstances. For example, under Article 15, if you send a request for service of process via the central authority mechanism and you don’t hear anything for six months, you can apply for and receive a default judgment. A defendant who has not been served with process always has grounds for setting aside a judgment, whether the issue is misdelivered mail or, e.g., a fraudulent certificate of service. But you’re right that mail is less certain than personal service.

      Regarding the supposed contradiction in allowing service of process by mail under the Hague Service Convention, in contravention of domestic service rules, I would just say that it is the law of the forum that determines the validity of the service. The law of the state of destination is relevant to the extent that the forum, as a matter of comity, does not want to allow any method of service that offends the state of destination’s sovereignty. But that’s why the Convention allows the state of destination to object to alternate methods of service such as service by postal channels, which is precisely what Canada did not do, as I showed above.

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