Case of the Day: Signalquest v. Tien-Ming Chou

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I like how the judge in today’s case of the day, Signalquest, Inc. v. Tien-Ming Chou (D.N.H. 2012), began: “When service of process absolutely, positively has to be effected on a Taiwanese defendant pursuant to FRCP 4(f)(2)(C)(ii), is Federal Express enough?”

The claim was for patent infringement. Signalquest asserted that Chou and his company, Oncque, were infringing Signalquest’s US patent, and it sought a declaration that it (Signalquest) was not infringing Chou’s US patent. Signalquest asked the clerk to make service under FRCP 4(f)(2)(C)(ii), which provides for service “unless prohibited by the foreign country’s law” by “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” The request was specifically for service via Fedex. The clerk transmitted the documents to the defendant via Fedex, and the defendants moved to dismiss. There were various subsidiary issues—is Fedex a “form of mail,” did it matter that an agent signed for the papers, etc.—but the judge focused on the main issue: what does “prohibited by the foreign country’s law” mean? Some courts say that it refers to methods of service expressly prohibited by the foreign law. Other courts say that it refers to methods of service not expressly permitted by the foreign law. The judge, following what he took to be the majority rule, held that the rule permits service by mail as long as the foreign law does not expressly prohibit it. He focused on the language of the rule, and in particular the plain meaning of the word “prohibit,” and on the consequences of the contrary rule. FRCP 4(f)(2)(A) permits service by methods “prescribed” by the foreign law, and if FRCP 4(f)(2)(C)(ii) also required service of mail to be “prescribed”, then service under FRCP 4(f)(2)(C)(ii) would be available only if service by mail were permissible under FRCP 4(f)(2)(A). But the whole point of FRCP 4(f)(2)(C)(ii) is to provide an alternative to FRCP 4(f)(2)(A).

This decision seems clearly correct to me. There are similar issues that are probably closer calls, e.g., whether Article 10 of the Hague Service Convention affirmatively authorizes service by mail or merely does not forbid it when it is otherwise authorized. But I think the judge was right, in this case, in his focus on the language and function of the provision in question.

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Case of the Day: Miochnovez v. Blair, LLC

The case of the day is Michnovez v. Blair, LLC (D.N.H. 2011). According to the pleadings, the plaintiff’s decedent has been killed when her bathrobe had caught fire while she was cooking. A-One Textile and Towel Industries, a Pakistani firm, manufactured the robe and was one of the defendants in the wrongful death suit.

Pakistan is a party to the Hague Service Convention. But Michnovez was advised by the process service firm he hired to effect service that the central authority mechanism rarely worked in Pakistan. So instead, Michnovez hired a private process server who served the summons and complaint on Haji Muhammad Ashraf, identified on the return of service as “owner/director” of A-One.

Michnovez asserted that the service was valid under Article 10(c) of the Convention, which provides:

Provided the State of destination does not object, the present convention shall not interfere with—
* * *
the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

But if I can reframe the court’s discussion a bit, the court correctly held that the service not only had to be permissible under the Convention, it had to be permissible under the law of the forum, i.e., the Federal Rules of Civil Procedure—a point we’ve considered before.

Here is the analysis:

  1. Rule 4(f)(1), which permits service by methods “authorized by” the Convention, did not apply, because Article 10 does not “authorize” methods of service, but merely provides that the Convention does not interfere with those methods of service (unless the destination state objects).
  2. Rule 4(f)(2)(C)(1), which permits service by “delivering a copy of the summons and of the complaint to the individual personally” (unless the destination state’s law forbids such service), did not apply, because Rule 4(h)(2) expressly provides that Rule 4(f)(2)(C)(1) is not available for service on corporations abroad.
  3. The only method that could, on its face, apply is 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 Michnovez had not really done anything to show that Pakistan law permitted service on a corporation in domestic litigation by personal service on a person such as Ashraf. So the court dismissed without prejudice.

I think the court got this just right.