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Case of the Day: Progressive Southeastern Insurance Co. v. J&P Transport

The Case of the Day, Progressive S.E. Ins. Co. v. J&P Transport (N.D. Ind. 2011), is a denial of a motion for alternative service in Canada. Progressive, the plaintiff, sought to serve Andrews, a Canadian, at an Ontario address that its private investigator had obtained, via the Canadian Central Authority. The Central Authority’s certificate stated that it was unable to make service because Andrews had moved and left no forwarding address. Progressive then sought leave to serve process on Andrews by mail addressed to Andrews’s Canadian lawyer, who was representing Andrews in a related proceeding in Canada.

The Court denied the motion. It held that Progressive had not used diligence to discovery Andrews’s new address, though the case that it cites for this proposition is a case involving the standard for determining when an address is unknown such that under Article 1 of the Hague Service Convention, the Convention does not apply. This suggests that the court may have misunderstood a somewhat subtle idea—because Canada has not objected to service by postal channels, service by mail in Canada is not inconsistent with the Convention, and so Article 1 isn’t really to the point. More to the point, the Court pointed out there was no evidence Progressive had asked the Canadian lawyer for Andrews’s address. The court went on to say that it wasn’t clear that service on the Canadian lawyer was reasonably calculated to provide notice to Andrews, but it’s not clear why this is so, assuming that he was indeed Andrews’s lawyer.

Case of the Day: JB Custom, Inc. v. Amadeo Rossi, S.A.

The case of the day is JB Custom, Inc. v. Amadeo Rossi, S.A. (N.D. Ind. 2011). JB Custom, a firearm manufacturer, designed and sold the “Mare’s Leg”, a custom lever-action gun. It sued Amadeo Rossi and Forjas Taurus, two Brazilian firms, for trademark infringement and for breach of an “exclusivity agreement”. JB Custom attempted to serve process by certified mail addressed to the Brazilian companies’ headquarters in Brazil. The Brazilian defendants moved to dismiss on the grounds of insufficient service of process.

Brazil is not a party to the Hague Service Convention, but it is a party to the Inter-American Convention on Letters Rogatory. The Inter-American Convention allows alternate methods of service, without specifying them. Thus under Fed. R. Civ. P. 4(f)(2)(C)(ii), service by certified mail could be an acceptable method of service, but only if the mail is sent by the clerk. Since JB Custom itself sent the documents, the court quickly discounted this possibility.

The remaining possibility was Rule 4(f)(2)(A), which permits service “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction.” But does this refer to Brazilian law that applies when a Brazilian files a lawsuit in Brazil, or to Brazilian law that applies to service in Brazil in a case brought elsewhere? The latter, the court held, because if a country has enacted laws specifically governing service of process in its territory where the action was brought abroad, it would be an affront to that country’s sovereignty to allow service under the law applicable in the country’s general domestic litigation. After reviewing competing expert affidavits, the judge determined that Brazilian law did require service by letter rogatory in cases against persons in Brazil in foreign jurisdictions. So the service by mail was improper under Rule 4(f)(2)(A).

JB Custom asked the court to approve an alternate method of service under Rule 4(f)(3). It noted that prior State Department guidance indicated it could take up to three years to serve a letter rogatory in Brazil. (The current State Department guidance does not include such a statement). But the court did not the difficulties of obtaining service via a letter rogatory persuasive:

But even if I were to presume that it remains difficult to obtain service in Brazil via letters rogatory, for the reasons just stated I will not override the laws a sovereign state like Brazil just because they are perceived to be slow or difficult. Any questions about the ways in which Brazil processes letters rogatory or complies with the Inter–American Convention are ultimately diplomatic issues for the executive branch. For me to impose by fiat a rule allowing service on Brazilians in a manner that Brazil has apparently resisted for decades would be to side-step the State department and its role in negotiating with the sovereign state of Brazil.

If the question is whether the court could authorize service by mail on the defendants in Brazil, then I think the court’s approach may be persuasive, particularly if Brazilian law actually forbids service by mail from abroad (it’s not clear from the court’s discussion whether that is so). But I don’t regard the decision as ultimately persuasive, because the court could authorize service on the Brazilian defendants’ US counsel without any offense to Brazilian sovereignty that I can see. So I think this case is probably not correctly decided.