The case of the day is PNC Bank v. Baglien (S.D. Tex. 2024). Friend of Letters Blogatory Maggie Gardner has a good post up about the case at the Transnational Litigation Blog. PNC sought to serve Baglien by process server in Calgary after a “skip trace” found an address for him there, but the effort was unsuccessful. Service by “recorded mail,” which I assume is like certified mail, again unsuccessfully. It then sought leave to serve process by mail and email.

PNC was right to try to serve process by process server in the first instance. Since Canada uses process servers in its domestic lawsuits, since it has not objected to alternate methods of service under Article 10 of the Service Convention, and since FRCP 4(f)(2)(A) authorizes service “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction,” there usually is no need to seek the aid of the central authority.

But what to do when service by process server fails? To cut to the chase, the judge in today’s case denied the motion and suggested PNC should make a request to the Alberta central authority. I’ll get back to her reasoning in a bit. But what do you imagine the central authority will do when it receives such a request? A good guess is that it will put the papers in the hands of a process server for service, and it’s unclear why we should expect that process server to be more successful than the first. PNC could, of course, request service ” by a particular method” under Article 5 of the Convention, and I suppose it could request that the central authority serve process by email or by mail. But that seems like a lot of unnecessary rigmarole. Why is it better for the central authority to have someone send the email than for PNC’s lawyer to send it? There are states where there is an answer to that question: states that have an objection to service of process in their territories by foreign litigants or officials. But those are the states that have made declarations under Article 10. Canada isn’t one of them.

Like Maggie, I think the judge deserves a hand for really focusing on Letters Blogatory issues that judges often don’t bother to engage with. But I don’t think the opinion should be cited or relied on. Here is the heart of the judge’s reasoning:

If Albertan defendants could be served notice of U.S. cases by ordinary or electronic mail, no plaintiff “would ever choose” to serve them through the central authority, in person, or by mail requiring a signature, Anova Applied Elecs., 334 F.R.D. at 472, and much of their assurance of receiving “actual and timely notice of suit” would evaporate. Schlunk, 486 U.S. at 698. In Alberta, therefore, service by ordinary or electronic mail, at least where not otherwise authorized or excepted, is inconsistent with and prohibited by the Hague Convention.

Leaving aside whether the first bit of the premise is true (whether no one would choose service via the central authority if service by mail or email is available), the second bit is clearly wrong. It just isn’t true that service by mail or email doesn’t give defendants “actual and timely notice of suit.” Well, sometimes it might be true. But if it is true, then it’s hard to understand why FRCP 4(f)(2)(C)(ii) exists,¹The rule authorizes service by certified mail sent by the clerk. or why it would be okay for the Alberta central authority to serve process by mail or email but not okay for the plaintiff’s lawyers to do it. Also, the conclusion doesn’t follow. The best way to see this is to look at Article 10(a) of the Convention, which plainly does permit service by ordinary mail, and which may permit service by email, if you think that email is within the scope of the term “postal channels.”

The judge went on to say, “The Court need not decide whether it could, consistent with the Convention, order substitutional service by these methods under Albertan law, as the Court is not persuaded to apply that law’s discretionary substitutional-service provision here.” The reference to Alberta law is a reference to a Rule 11.28 of Alberta Rules of Court, which allows courts to make an order for substitutional service. I do think the judge had plenty of discretion to deny the motion and to require at least an attempt at service via the central authority. Some courts take the view that you should try the central authority first. But there’s no reason why the judge should think that it was necessary to decide whether the methods of service she’s asked to authorize are consistent with Alberta law. The question under FRCP 4(f)(3) is whether the service is consistent with the Convention; alternate methods of service can violate foreign local law.

Finally, the judge thought that comity compelled denial of the motion:

The parties to the Hague Convention went to a great deal of trouble to set up a flexible interface for their respective service processes. See Schlunk, 486 U.S. at 698. If clever end runs are to make this achievement irrelevant, this Court will be the last to join in them. Comity with our northern neighbor impels a higher deference to the Convention’s intended function. See Water Splash, 581 U.S. at 280 (citing id. at 700).

The problem with this is the same as the problem we identified earlier. The Convention is there to help parties effect service, not to hinder them. Comity does come into play in those states that object to alternate methods of service, but there is no reason to think that comity to a foreign state requires American courts to refrain from methods of service that are 100% okay with the foreign state.

Image credit: sweetviscape (CC BY)

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  The rule authorizes service by certified mail sent by the clerk.