Case of the Day: Parfitt Way Management v. GSM by Nomad
Posted on June 11, 2018
The case of the day is Parfitt Way Management Corp. v. GSM by Nomad, LLC (N.D.N.Y. 2018). The main claim was for breach of contract for the refurbishment of a trailer. Parfitt sued Guillaume Langevin and Steve Clement on a veil-piercing theory, alleging that they were personally liable for GSM’s alleged breaches for reasons that are not important for our purposes. Langevin and Clement moved to dismiss for insufficient service of process.
Langevin and Clement had, in their answer to the complaint, asserted insufficient service as an affirmative defense, but they did not move to dismiss until sometime later. This is uncommon and it raised an issue about the timeliness of the motion: FRCP 12(b)(5) provides that a motion asserting insufficient service may be brought before the answer is served. But the plaintiff’s argument about untimeliness here was plainly wrong. FRCP 12(b) provides that certain motions “may” be asserted by motion and are exceptions to the ordinary rule that all defenses must be asserted in the answer. But the rule does not mean that those motions must be asserted by pre-answer motion. To be sure, if you have one of these defenses, so-called “defenses in avoidance” that do not go to the merits (e.g., lack of personal jurisdiction, defects in service, improper venue, etc.), you have to plead it or else it is waived, but that is just what Langevin and Clement did here. The real question is just how far along you can let a case progress before seeking a decision on such a defense, but that apparently wasn’t an issue here.
It apparently was undisputed that the defendants had been in Canada at all times relevant to the service of process, but the parties had nevertheless proceeded on the assumption that the question was whether the service was proper under FRCP 4(e), the rule governing service on individuals in a judicial district of the United States.
So the question really was whether the service complied with FRCP 4(f), and here the case does present an interesting factual situation: according to an affidavit, an employee of the plaintiff “met Mr. Langevin at the U.S./Canada border and handed him the summons and complaint, which he accepted.” Now that is odd. What exactly does it mean? Surely it doesn’t mean that the Parfitt employee stood on one side of the line and Langevin stood on the other as the documents were exchanged. There are places where one could do this, I suppose, as many border crossings have pedestrian access. But why would you do this? And why would an employee of the plaintiff do it himself rather than hiring a process server? Very odd.
In any case, the service failed under FRCP 4(f), because it did not comply with the Hague Service Convention or Quebec law. It did not comply with the Convention because under Article 10, service by alternate methods (i.e., not via the central authority) has to be performed by a person who is competent under the law of the state of destination. It did not comply with Quebec law because service in general must be executed by a huissier.
The judge also rejected, I am happy to say, an attempt to serve process by email, asserting that service by email is not “an explicitly recognized method of service of documents under the Hague Convention.” I wish the court had gone further and explained that methods that are not expressly permitted are forbidden, but let us be thankful for the little things.
The court therefore held that the service was insufficient and quashed the service (but did not dismiss the case).