The case of the day is Sylla v. Kataname, Inc. (Cal. Ct. App. 2012). John Sylla asserted claims for breach of contract and for a variety of business torts against several defendants, one of which was IT-Farm Corp., a Japanese company. Sylla commenced the action in September 2005 and amended his complaint in December 2007 to name IT-Farm as a defendant. He transmitted a request for service of process to the Japanese central authority in February 2008, using an “international process server.” The request sought service under the second paragraph of Article 5 of the Hague Service Convention, which reads:

Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.

This mode of service gives the defendant the option not to accept the papers voluntarily, which is precisely what IT-Farm did. In April 2008, the Japanese central authority returned a certificate indicating that the document had not been served because IT-Farm failed to respond to the Central Authority’s request that it voluntarily accept the documents.

In April 2010, IT-Farm moved to quash the service of process and to dismiss the action on the grounds that California law requires service to be made within three years of the filing of the complaint. For reasons of California law, it appears that the filing of the complaint in 2005, not the filing of the amended complaint in 2007, is the relevant date.

Sylla argued that the motion should be denied because he had been diligent and IT-Farm had refused to accept service. Poppycock, the judge said.¹Well, the judge didn’t say “poppycock”—that’s my word. The judge gave strong reasons for refusing to equate actual notice of the action with service of process. All good points, but I would just add that it’s inexplicable why Sylla used the second paragraph of Article 5 instead of the first paragraph, which requires the central authority to serve the documents “by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory.” If that was too much trouble, Sylla could have served the documents by mail, since as I noted in my post on the Gundlach case, Japan has not objected to service by mail.

All of this is particularly inexplicable because it appears that Sylla’s lawyers hired an “international process server” supposedly expert in these matters. It’s difficult to say exactly where things went wrong for Sylla, but it seems clear that Sylla has no one to blame for the outcome but his own advisors, whether his lawyers or the supposed expert the lawyers hired, or both.

Photo credit: Bernard Gagnon

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  Well, the judge didn’t say “poppycock”—that’s my word.