Case of the Day: Cambria Co. v. Pental Granite & Marble, Inc.

The case of the day is Cambria Co. v. Pental Granite & Marble, Inc. (D. Minn. 2013). Cambria, a Minnesota company that designs, manufactures, and sells quartz surfacing products such as countertops, sued Vinaconex Advanced Compound Stone Joint Stock Co. for copyright infringement, unfair competition, and unjust enrichment. Vinaconex was a Vietnamese corporation that manufactured some of the products that Pental, the other defendant, sold.

Vietnam is not a party to the Hague Service Convention. According to the return of service, Cambria served the summons and complaint on Vinaconex by personal service performed by Sim Mala, a process server, on Duong Trung, a security guard for Vinaconex, in Hanoi. There was no signed receipt. Cambria moved for entry of a default judgment when Vinaconex failed to answer the complaint, and Pental moved to set the default aside. 1 The judge set aside the default.

Under FRCP 4(h)(2), Cambria was required to serve process on Vinaconex using any of the methods of service prescribed for service of process on an individual abroad, except personal service under FRCP 4(f)(2)(C)(i). So Cambria could have served process as prescribed by a Vietnamese court in response to a letter of request (FRCP 4(f)(2)(B)), or, if permitted by Vietnamese law, by using a form of mail that requires a return receipt (FRCP 4(f)(2)(C)(ii)), or by some other means that the court prescribed (FRCP 4(f)(3)). But instead, Cambria chose to attempt service of process “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction” (FRCP 4(f)(2)(A)). So the judge faced the unenviable task of deciding whether the service here comported with Vietnamese law.

Cambria, probably foolishly, did not submit an expert declaration. Pental did. Its expert, a Vietnamese lawyer, asserted that under Chapter X of Vietnamese law, service on a corporation requires a signed receipt. The judge found that Vietnamese law did require a signed receipt‐he could hardly do otherwise given the materials before him—and therefore held that the default was improper.

You may be thinking that Cambria acted foolishly; why didn’t it just serve process by mail under FRCP 4(f)(2)(C)(ii)? But Cambria could not have avoided the Vietnamese law issue so easily, since service by mail under that rule is permissible only if not forbidden by Vietnamese law. But Cambria had another option. It could have sought leave to serve process by alternate means. The most readily apparent means? Service on Pental. It would be tough for the defendants to deny that such service would be reasonably calculated to reach Vinaconex, as Pental and its US lawyers had stepped forward to defend Vinaconex in the case. But today’s case does illustrate the sometimes difficult choices faced by plaintiffs where the defendant is in a country that is not a party to the Convention and whose law may not be simple for an American lawyer to determine.

Notes:

  1. There was an issue about Pental’s standing that I will not address.

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 2012), 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.

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