The case of the day is Inversiones Papaluchi S.A.S. v. Superior Court (Cal. Ct. App. 2018). The case arose out of helicopter accident in Colombia in 2011. The defendants brought a cross-complaint against Inversiones Papaluchi, a Colombian entity. Colombia is a party to the Hague Service Convention and has not objected to service by postal channels. The defendants served process by Fedex and email.
The justification under California law for service by Fedex was a statute that reads:
Except as otherwise provided by statute, a summons shall be served on a person: … (c) Outside the United States, … if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served …
The rule is the analogue of Fed. R. Civ. P. 4(f)(2)(A).
The court correctly recognized that under Water Splash v. Menon, it had to ask whether California law affirmatively authorizes service by mail. This should have been an easy question: of course a statute that provides for service “as prescribed by the law of the place where the person is served” authorizes service by mail if the law of the place of service authorizes service by mail. But the court overread Water Splash: the statute, it held, “does not affirmatively authorize service by mail, let alone by Federal Express.” I think the court misunderstood the point of Water Splash. The point of the case wasn’t to say that the statute has to expressly name the method of service used—it’s common for rules on service of process to incorporate by reference the rules of other jurisdictions. Rather, the point of the case was to say that the Convention itself did not authorize service under Article 10(a), and thus that it is necessary to see if the service would be effective under state law in the absence of the Convention. The answer to that question here is clear. So this decision is erroneous and should not be followed.
The case also had an interesting discussion of service by email in Colombia that I will cover in a follow-up post.