Case of the Day: Signify North America v. Axis Lighting

The case of the day is Signify North America Corp. v. Axis Lighting Inc. (S.D.N.Y. 2019). Signify sued Axis, a Quebec firm, for patent infringement. A Quebec bailiff or huissier served the summons and complaint on a person in Axis’s department of human resources who, according to the bailiff, “appear[ed] in care and in control and/or management and authorized to accept service of legal process on behalf of [Axis].” Axis did not answer, and the clerk entered its default. Axis then moved to dismiss for insufficient service of process.

The judge rejected several of Axis’s plainly incorrect arguments. Axis argued, for example, that the service failed because the documents were not translated into French; but the judge pointed out that the Convention itself imposes a translation requirement only when service is made under Article 5, and then only when required by the foreign state, and that Quebec law did not require a translation into French in any case for cases in its own courts and a fortiori did not require a translation in cases in foreign courts. The judge also correctly rejected the argument that Signify had to attempt service via the central authority mechanism in Article 5. Canada has not objected to service under Article 10, and it’s clear that a huissier is a competent person under Quebec law.

The only sour note in the decision is the judge’s apparent view that the service was proper under FRCP 4(f)(1). Rule 4(f)(1) applies to methods of service “authorized” by the Hague Service Convention, which means service via the central authority. Service by the alternate means listed in Article 10 are not “authorized” by the Convention but rather merely permitted by it. So you need to find another source of authorization in the law of the forum. In this case, that’s easy. The service is authorized by FRCP 4(f)(2)(A), 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.” The judge’s mistake on this point is curious, because she cited Water Splash v. Menon, the case in which the Supreme Court made explicit the distinction between methods of service that the Convention authorizes and methods that it permits.

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