The case of the day is Soffin v. eChannel Network, Inc. (S.D. Fla. 2014). iSocial Media LLC sued eChannel, an Ontario corporation with offices in Toronto, for trademark infringement. I suppose in whatever business the companies operate, capitalizing the second letter of their names is considered edgy. eChannel’s principals were two brothers, Dragos Daniel Dumitra and Cosmin Cirprian Dumitra.
iSocial had trouble serving process. eChannel’s counsel refused to accept service on the company’s behalf. iSocial’s process server went to eChannel’s registered office but found that it was a “residence in a ‘state of disarray.’” He returned later, and the brothers’ mother told him that they no longer lived there.
The process server located some other properties owned by the Dumitras and tried unsuccessfully to serve them. Later, their mother told him that they were traveling in Europe and that she had not told them of his previous attempt at service.
Ultimately iSocial’s process server left copies of the papers at two of the addresses associated with the Dumitras and also mailed copies to those addresses. Someone purporting to be Dragos Dumitra in Romania accessed the LinkedIn profile of one of eChannel’s lawyers, which eChannel took as evidence that the Dumitras had actual notice of the lawsuit. iSocial moved for an order deeming service of process effectuated.
The judge denied the motion without prejudice. On the one hand, he held, correctly, that service by mail in Canada is permissible under the Service Convention. But on the other hand, the judge incorrectly focused on whether Ontario local law permitted service by mail. The two relevant questions are whether the law of the forum (here the FRCP) permits service by mail, and whether the Convention permits service by mail. The local law of the foreign country is irrelevant.
However, the judge held that the service did not comport with due process on the strength of the evidence that the the Dumitras were in Europe and that they no longer could be found at eChannel’s registered address.