Case of the Day: Mahindra & Mahindra Ltd. v. Holloway Motor Cars of Manchester

The case of the day is Mahindra & Mahindra Ltd. v. Holloway Motor Cars of Manchester, LLC (N.H. 2014). Several automobile dealers, including Holloway, filed a protest with the New Hampshire Motor Vehicle Industry Board, alleging that Mahindra & Mahindra, a car manufacturer in Mumbai, had violated a New Hampshire statute by wrongfully terminating an exclusive distribution agreement with Global Vehicles U.S.A., Inc., a firm which, in turn, had contracted with the dealers for the right to sell Mahindra & Mahindra cars. The Board is an administrative agency of the New Hampshire government. It has adopted rules of procedure to govern adjudicative cases. The Board entered a default judgment, and Mahindra appealed to the Superior Court, claiming that it had never properly been served with process.

It was agreed that the Hague Service Convention would apply, absent a waiver, and that the service, which was by postal channels, did not comply with the Convention. So the question was whether Mahindra had waived the issue.

The court held that there was no waiver for reasons that aren’t that interesting and that I won’t discuss. The case is somewhat interesting, though, because the proceeding was administrative, not judicial. The Convention, by its own terms, applies “in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Was the New Hampshire administrative proceeding a “civil or commercial matter?” It seems to me that the underlying dispute is probably in what the 1989 Special Commission called the “gray area,” along with employment and similar matters that straddle the line between public and private law. But both as a matter of US law and the guidance of the Special Commission, it’s clear that we should give the term “civil or commercial matter” a liberal reading. But presumably the reason we want to give the term a liberal reading is that then the Convention will apply and the Convention, when it applies, facilitates service of process across borders. So there’s some irony in holding that the Convention applies here, since the effect of applying the Convention, in light of India’s objection to service by postal channels under Article 10(a), is to make service of process more difficult, not easier.

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