Case of the Day: In re LLS America
Posted on July 16, 2012
Today’s case of the day, Kriegman v. Cooper (In re LLS America, LLC) (Bankr. E.D. Wash. 2012), is yet another case standing for the proposition that as a matter of US law, service by mail is permissible in Canada. Frank and Miller, both of British Columbia, were investors in what may or may not have been a Ponzi scheme disguised as a payday loan business. The bankruptcy trustee sued those early investors who had gotten payouts from the enterprise. The clerk addressed and sent the summonses and complaint to them by international registered mail. The court approved the service on the grounds that Canada had not formally objected to service by postal channels under Article 10(a) of the Hague Service Convention. My only quibble with the decision is that it treats service by mail as one of the methods the Convention affirmatively prescribes rather than treating it as a method that the Convention does not forbid. I think the latter approach is preferable, and if I’m right, the court should not have said that FRCP 4(f)(1) (“by any internationally agreed means of service that is reasonably calculated to give notice …”) authorized the service, but rather that FRCP 4(f)(2)(C)(ii) (“any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt …”) authorized the service. But this is a minor point.
Esteemed fellow blogger Antonin Pribetic and I have discussed this issue on several occasions, for example, in the comments to the post on Progressive Southeastern Insurance v. J&P Transport and in the comments to the post on Schiff v. Hurwitz. I refer readers to Antonin’s comments for a different perspective on the permissibility of service by mail in Canada in a US civil action, though I think that the US law on this is well settled. Whether a Canadian court would recognize or enforce a US judgment where the service of process was by mail is another question on which I can’t express a view.