Case of the Day: Syncrude Canada Ltd. v. Highland Consulting Group
Posted on January 17, 2013
The case of the day is Syncrude Canada Ltd. v. Highland Consulting Group, Inc. (D. Md. 2013). Syncrude sued Highland and two affiliates (two were Delaware corporations with offices in Maryland, the third a Swiss company doing business in Switzerland) in the Alberta Court of Queen’s Bench for breach of a consulting contract. The Highland defendants were served with process by registered mail to their principal offices. The Highland defendants defaulted, and Syncrude got a default judgment, which it then sought to enforce in Maryland. By agreement, the parties dismissed the Maryland claim against the Swiss affiliate, leaving the two companies with offices in Maryland as defendants. The parties filed cross-motions for summary judgment. 1 The main issue was service of process.
Letters Blogatory readers will be familiar with the quirky split in American decisions on the meaning of Article 10(a) of the Hague Service Convention. Article 10(a) is plainly intended to permit service of process by postal channels unless the state of destination objects, and a majority of American courts have reached that result. But a minority of courts say that Article 10(a) permits only service of documents other than summonses via postal channels, because the English version of the Convention uses the word “send” instead of “serve.” The American cases generally have to do with the validity of service abroad in a US civil action. Today’s case asks about the validity of service in the US in a civil action abroad. Fortunately, the judge, after reviewing the split of authority, came down on the side of all that is good and just and held that Article 10(a) does permit service of process by mail.
In the US cases we’ve reviewed, the next question has been: granted that service by mail is permitted by the Convention, must it also be authorized by the law of the forum (namely, the Federal Rules of Civil Procedure or the state court analogue), and if so, is it authorized? Again, today’s case flips this around, asking whether the service by mail was authorized by the law of Alberta. It was. Rule 11.26(1)(a) of the Alberta Rules of Court permits service “by a method provided by these rules for service of the document in Alberta.” Under Rule 11.9(1)(b) service on a corporation is proper if sent “by recorded mail, addressed to the corporation, to the principal place of business or activity,” and under Rule 11.9(2)(b), the service is effected “on the date the acknowledgment of receipt is signed.”
Highland raised one final issue: it claimed a denial of due process because the summons was not mailed to a specific person but rather to the corporations, and because it was received by a person not authorized under Maryland law to receive service of process, namely the comptroller, Todd Bittner. But Bittner was on of the signatories of the underlying contract, and there was no question about the corporation’s actual notice of the case. Thus the service was proper.
The only sour note in the decision comes in the judge’s remarks about a requirement that the service comport with Maryland law. It seems to me that Maryland law is irrelevant to the decision. Leaving aside questions of due process and compliance with the Convention, the validity of the service should be determined under the law of the forum.
- Highland’s motion was a motion to dismiss, but the judge properly treated it as a motion for summary judgment because it required reference to matters outside the pleadings. ↩