Case of the Day: GCIU-Employer Retirement Fund v. Coleridge Fine Arts

The case of the day is GCIU-Employer Retirement Fund v. Coleridge Fine Arts (D. Kan. 2015). Coleridge was an Irish corporation. The Fund sought to effect service of process by arranging for an Irish solicitor to serve the documents on the corporation’s receptionist. Coleridge moved to quash the service on the grounds that it did not comply with Irish law.

Ireland has objected to service under Articles 10(b) and (c) of the ague Service Convention, but its declaration states that it is “not intended to preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in Ireland directly through a solicitor in Ireland.” So the service via solicitor was permissible under the Convention.

Coleridge argued that Irish law required the service to be made on its head officer, clerk, treasurer, or secretary. The judge found that Coleridge was wrong about what Irish law required and that in fact the service complied with Irish law. Hence the court denied the motion to quash.

The most interesting aspect of the decision is the judge’s analysis of the interplay between FRCP 4(h)(2), the rule governing service on corporations abroad, and the Convention. Rule 4(h)(2) provides that service on a corporation abroad can be made “in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).” The judge thought the relevant prong of FRCP 4(f) was Rule 4(f)(1), which provides for service “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” But the Convention does not authorize service under Article 10(c): it merely permits service under Article 10(c). Except in those courts that hold (incorrectly, in my view) that the methods of service outlined in Article 10 are affirmatively authorized by the Convention, it’s necessary to find another source in the FRCP that actually authorizes the method under Article 10 at issue. Here, that’s easy to do. FRCP 4(f)(2)(A) provides for service “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction.” So the judge, rather than citing FRCP 4(f)(1), should have cited FRCP 4(f)(2)(A).

Let me add another wrinkle. FRCP 4(f)(2) applies, on its face, only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means.” For the reasons I gave in a post back in May 2014, I think it’s possible to read FRCP 4(f)(2) in such a way that it never applies to service in a Hague Convention country, because the Convention is exclusive, and there are no means that it allows but does not specify (except perhaps under Article 19, which is not at issue here).

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 2d ed. 2016), 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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