Case of the Day: Wyndham Hotel v. 683079 Ontario

The case of the day is Wyndham Hotel Group Canada ULC v. 683079 Ontario Ltd. (D.N.J. 2018). The case was for breach of a franchise agreement. Wyndham had served the summons on the defendant by mail in Ontario, and it then sought a default judgment.

The judge denied the motion. He correctly reasoned that the Hague Service Convention permitted but did not itself affirmatively authorize service by mail. He also found that Wyndham had not complied with FRCP 4(f)(2)(C)(ii) because the clerk did not send the mail to the defendant.

Wyndham tried to save its motion by pointing to FRCP 4(2)(A), which applies “if there is no internationally agreed means, or if an international agreement allows but does not specify other means,” and which authorizes service “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction.” Wyndham cited cases showing that Canada had not objected to postal service under the Convention, but the judge correctly recognized that the question was whether Canadian law itself authorized service of process in Canadian lawsuits. The plaintiff had failed to prove the relevant Canadian law.

The judge noted some cases that had held that FRCP 4(2)(A) could never apply to service by postal channels, but while he didn’t decide the issue one way or the other he cast doubt on the holding. I think he was wise to be skeptical—if the relevant foreign law does authorize service by mail for its own domestic litigation, then it seems to me that FRCP 4(2)(A) should apply. Another issue, which the judge didn’t consider, is whether FRCP 4(2)(A) can apply at all in a case where the Hague Convention applies. In such cases, there is an internationally agreed method of service, and the Convention does specify the alternate means of service it allows. My view is that for this reason, FRCP 4(2)(A) should never apply in cases where the Convention applies.

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