Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Case of the Day: Holt v. Kormann Rockster Recycler

The case of the day is Holt v. Kormann Rockster Recycler GmbH (Cal. Ct. App. 2012). Holt sued Kormann, an Austrian company, Rockster North America (“RNA”), a Canadian corporation, and Stephane Guerchon, a resident of Montreal. RNA was the North American distributor of Kormann rock crushers in North America, and Guerchon owned RNA. The claim had to do with whether Holt was within his rights to cancel an order for a rock crusher that he had placed with RNA (which, in turn, had placed an order with Kormann).

Holt served process on all three defendants by service on Guerchon. Since Guerchon lived in Canada, a party to the Hague Service Convention, Holt made service via the Canadian central authority. Kormann did not answer the complaint, and Holt sought a default judgment against Kormann, which the court granted. Kormann moved to set aside the judgment on the grounds of insufficient service of process. The judge granted the motion, and Holt appealed.

The court affirmed the order. The decision was plainly correct, as Holt had not complied with the provisions of California law regarding the form of a summons to be used where a plaintiff wants to serve a corporate defendant by service on a purported agent. But I think the court went astray when it suggested that the Hague Service Convention did not apply to the case. It’s true that Kormann is an Austrian company, and Austria is not a party to the Convention. But the key to determining whether the Convention applies is to look to the state where the service is to be effected. Here, Holt tried to make service on Kormann by serving process on a purported agent in Montreal. Because the service was to be made in Canada, and because Canada is a party to the Convention, the Convention did indeed apply. So I think the court was wrong to suggest that “Holt could not effect service on Kormann by serving Guerchon or RNA pursuant to the Hague Service Convention.” The reason the service failed was that the summons did not comply with California law, not that the Holt proceeded under the Convention.

Ted Folkman
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3 responses to “Case of the Day: Holt v. Kormann Rockster Recycler”

  1. Antonin I. Pribetic

    Was the California complaint translated into French?: http://www.justice.gouv.qc.ca/english/programmes/sneaje/quebec1-a.htm

    “the judicial or extrajudicial document to be served, translated into French, in duplicate so a copy can be sent back to the requesting authority in order to permit that authority to identify exactly the document which has been served (article 3 paragraph 2);”

    Reply
  2. Ted Folkman

    Good point! But I don’t think it would have mattered. Kormann wasn’t arguing a lack of translation as a basis for setting aside the judgment. Anyway, suppose there had been no translation. The Quebec central authority could, under Article 4 of the Convention, inform the plaintiff that the request failed to comply with the Convention and refuse to execute it until the plaintiff provided a translation. But if the central authority went ahead and served the documents, and provided a certificate stating that it had effected service under Quebec law, I wonder whether it would be open to Kormann to argue that the lack of translation invalidated the service. My instinct is to say no (unless on due process grounds).

    Reply
    1. Antonin I. Pribetic

      Quebec Declaration under Article 5, para. 3:

      “For Quebec, translation will be required in all cases where the recipient does not understand the language in which the document is written. All documents which commence actions must be translated. Summary translation of all other documents is acceptable if the recipient agrees. Translation is to be done into the French language; however, the Quebec Central Authority may, upon request, allow a translation in English at the condition that the recipient understands this language.”

      http://www.hcch.net/index_en.php?act=status.comment&csid=392&disp=resdn

      Perhaps Kormann understands English or the plaintiff made a request to the Quebec Central Authority to allow the translation into English (or more accurately, to allow service of the judicial document in the original English).

      Reply

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