Case of the Day: Sale v. Jumbleberry Enterprises
Posted on March 3, 2021
The case of the day is Sale v. Jumbleberry Enterprises USA, Ltd. (S.D. Fla. 2021). Sale brought a fraudulent transfer claim against Jumbleberry, a Canadian company. It encountered delays in serving process and sought an extension of time to effect service, noting that Jumbleberry’s offices in Toronto had been closed due to the pandemic. Eventually, it had a Canadian process server, who was unable to make personal service due to the office closure, mail a copy of the documents to the Jumbleberry office. Jumbleberry moved to dismiss for insufficient service of process.
FRCP 4(f)(4)(2)(A) allows service by a method prescribed by the relevant foreign law, and Canada has not objected to alternative methods of service under Article 10 of the Hague Service Convention. Thus the service would be valid if valid under Canadian law. The plaintiff pointed to an Ontario rule of civil procedure that provided for service of mail “where the head office, registered office or principal place of business of a corporation … cannot be found at the last address recorded with the Ministry of Consumer and Commercial Relations.” But the office could indeed be found; it simply was closed. The court held that the plaintiff had failed to show that the service was permitted by Canadian law.
The court rejected the plaintiff’s argument that the pandemic had made service impossible, noting that the plaintiff could have sought to serve process via the central authority mechanism. This is a little bit of a non-sequitur, since the central authority mechanism is not itself a method of service: it is a way to send a request to a foreign government to effect service; and if the plaintiff could not effect service under Canadian law, why would the court think that a process server engaged by the Canadian central authority could have done better?
A simpler alternative for the plaintiff would have been service by mail, but mail sent by the clerk of the US court rather than mail sent by the Canadian process server. That method of service would have been entirely proper under FRCP 4(f)(2)(C)(ii), without regard to the details of Canadian law.