The case of the day is Companion Property & Casualty Insurance Co. v. US Bank N.A. (D.S.C. 2016). The document the court issued and that I’m highlighting today isn’t a decision: it’s a request for service under the Hague Service Convention directed to the Cayman Islands central authority.
Continue reading Case of the Day: Companion Property & Casualty v. US Bank
The case of the day is South Carolina v. Hitachi Displays, Ltd. (D.S.C. 2013). South Carolina sued Epson Imaging Devices Corp., a Japanese company, for conspiring to fix prices on thin film transistor-liquid crystal display panels. The case had been stayed pending resolution of a petition for certiorari in the Supreme Court. The state asked Epson’s US counsel to accept service by email, but he refused. It then sought to serve Epson in Japan via the Japanese central authority, but its request apparently used an old address for Epson, and the central authority could not effect service.
South Carolina then sought leave under FRCP 4(f)(3) to make service on Epson via its US counsel. The judge denied the motion. For the most part, this seems a permissible exercise of the judge’s discretion, even if it would also have been permissible and probably advisable to allow the state to make service by alternative means: the judge found that Epson’s correct address was readily obtainable, and that because of the stay South Carolina had adequate time to effect service via the Japanese central authority. The only sour note is the judge’s characterization of service on US counsel as “improper.” I think this has the potential to mislead. Service on US counsel wouldn’t be improper; but that doesn’t mean the judge had to permit it.
I love today’s case of the day, Charleston Aluminum, LLC v. Energomex, S.A. de C.V. (D.S.C. 2013), because it deals with the rarely-construed Article 3 of the Hague Service Convention. Charleston Aluminum sued Energomex, a Mexican company; the facts of the case are not apparent from the decision. Charleston filed a “motion for Hague service,” requesting that the clerk “sign and affix an apostille to Spanish language versions of the summons and complaint … and forward these documents to the appropriate Mexican Central Authority for service on Defendant.” Charleston Aluminum apparently believed that the Hague Service Convention “requires that the court effectuate service of process.”
Of course this is wrong. Article 3 of the Convention provides:
The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality.
Who is a competent person under US law to transmit a request for service of process to a foreign central authority? Here is an excerpt from § 2.3.4(b) of International Judicial Assistance (MCLE 2012):
In an action in federal court, the attorney for the plaintiff should be able to forward the request to the foreign central authority, because under Fed. R. Civ. P. 4(c)(2), the attorney is authorized to serve process. See Greene v. Le Dorze, No. CA 3-96-CV-590-R, 1998 U.S. Dist. LEXIS 4093 (N.D. Tex. Mar. 24, 1998); Marschhauser v. Travelers Indem. Co., 145 F.R.D. 605 (S.D. Fla. 1992). The United States, in its response to the Hague Conference’s 2003 questionnaire, has stated that “any court official, any attorney, or any other person or entity authorized by the rules of the court” may forward the request to the foreign central authority.
Judge Seymour, citing both Greene and Marschhauser, squarely held that an attorney is competent under Article 3. A nice, concise decision.