The case of the day is CenturyTel, Inc. v. Schermerhorn (In re Skyport Global Communications, Inc. (S.D. Tex. 2015). The case was a complicated bankruptcy dispute that I won’t attempt to summarize. One of the parties in an adversary proceeding in the Bankruptcy Court sought to serve a party, Wilson Vukelich LLP, in Canada. Service was effected via the Hague Service Convention, but the Article 6 certificate stated that service had been made by delivering the documents to Wilson Vukelich’s receptionist. The Bankruptcy Court granted Wilson Vukelich’s motion to dismiss for insufficient service of process, and the other party, Schermerhorn, appealed to the District Court.
On the one hand, Wilson Vukelich argued that service on the receptionist was not proper under Ontario law. (It may be that this was so, though it was apparently at least an arguable point). On the other hand, Schermerhorn had proceeded under Article 5 of the Hague Service Convention, that is, he had asked the Canadian (or Ontario) central authority to serve the papers on his behalf, and the central authority had returned an Article 6 certificate stating that service had been made.
As we know, a central authority’s Article 6 certification at least is prima facie evidence that service has been effected. And the judge in Skyport recognized several cases adopting that rule. But oddly, he then wrote that Schermerhorn had “failed to cite the Bankruptcy Court to any authority supporting their argument that the Certificate from the Canadian Central Authority was sufficient to prove that service had been made in compliance with the Hague Convention and local Canadian law.”
It seems to me that the right answer in such a case is to give the Article 6 certificate prima facie effect. The certificate should relieve the plaintiff from having to prove that the service was effected in accordance with the foreign law. It’s not clear to me why the judge didn’t take that approach here, particularly as he was aware of the cases holding that that’s just what he ought to do.
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