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Case of the Day: GCIU-Employer Retirement Fund v. Coleridge Fine Arts

The case of the day is GCIU-Employer Retirement Fund v. Coleridge Fine Arts (D. Kan. 2015). Coleridge was an Irish corporation. The Fund sought to effect service of process by arranging for an Irish solicitor to serve the documents on the corporation’s receptionist. Coleridge moved to quash the service on the grounds that it did not comply with Irish law.
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Case of the Day: LT Game International v. DEQ Systems

The case of the day is LT Game International Ltd. v. DEQ Systems Corp. (D.N.J. 2013). The claim was for patent infringement. DEQ was in Quebec. LT served process by mail, and DEQ moved to quash the service.

The court granted the motion, but not for the reasons you might fear. I’ve previously opined that service by mail in Canada is proper under the Hague Service Convention, notwithstanding the objections of my learned friend Antonin Pribetić. For background, you may want to see a post from March 2012 on the subject. In today’s case, the judge correctly recognized that the Convention poses no problems for service by mail in Canada, since Canada has not objected to service of mail under Article 10(a). But the judge noted, also correctly, that service must also comply with FRCP 4(f) (or to be more precise, since the defendant here was a corporation, FRCP 4(h)). Service by mail is not (in my view, anyway, and in the judge’s view) authorized by FRCP 4(f)(1) because the Convention does not affirmatively authorize service by mail—it merely permits it. Service by mail in this case was not authorized by FRCP 4(f)(2) because the clerk did not send the summons and complaint. 1 Service by mail was not authorized by FRCP 4(f)(3) because LT did not seek leave of court. There is no FRCP 4(f)(4), so the judge correctly determined that the service had to be quashed.

Notes:

  1. I would go further and say that FRCP 4(f)(2)(C)(ii) never permits service by mail in Hague Service Convention cases, because the rule applies only if the Convention “allows but does not specify other means,” which is manifestly not the case.

Case of the Day: Montana Trucks, LLC v. UD Trucks North America, Inc.

The case of the day is Montana Trucks, LLC v. UD Trucks North America, Inc. (D. Mont. 2013). UD Trucks was headquartered in Saitama, Japan. Montana Trucks sought leave under FRCP 4(f)(3) to serve the summons and complaint by mail and courier, and to serve the documents without a translation.

Let’s pause for a moment. Article 10(a) of the Hague Service Convention provides that the Convention does not interfere with the freedom to send judicial documents via the postal channel. Why, then, did Montana Trucks think it necessary to seek leave of court? FRCP 4(f)(1) permits service by “any internationally agreed means of service … such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents,” and FRCP 4(f)(2)(C)(ii) permits service by mail, unless prohibited by the foreign country’s law. But FRCP 4(f)(2)(C)(ii) applies only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means.”

I have previously noted a split of authority about whether the Convention affirmatively authorizes service by mail, or whether, on the other hand, it merely permits service by mail. If the Convention itself authorizes service by mail, then Montana Trucks could simply have mailed the documents under FRCP 4(f)(1), without leave of court. The Hague Convention’s translation requirements apply only when the service of process is to be effected under Article 5, via the foreign state’s central authority. So assuming that on the facts of the case the service of untranslated documents does not pose any Due Process problems, there was no reason for a motion.

If, on the other hand, the Convention does not affirmatively authorize service by mail—and I believe this is the better reading of Article 10—is service by FRCP 4(f)(2)(C)(ii) available? In prior posts, I’ve more or less assumed that it is, noting only that in such cases the mail must be addressed and sent by the clerk rather than the plaintiff, as FRCP 4(f)(2)(C)(ii) requires on its face. But remember that FRCP 4(f)(2) comes into play only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means.” In a Hague Convention case there are internationally agreed means. So the question is whether the Convention “allows but does not specify other means.” It seems to me the answer is “no.” The Convention specifies all of the means it allows, including service by postal channels. It seems to me that the language of FRCP 4(f)(2) doesn’t relate to the Hague Convention, but rather to conventions such as the Inter-American Convention on Letters Rogatory, which are non-exclusive, i.e., which authorize particular methods of service but which do not forbid otherwise applicable methods of service.

So although I don’t know offhand of cases on point, I think that if you want to serve process via postal channels under the Convention, and if you are in a jurisdiction like the Ninth Circuit that holds that the Convention itself does not affirmatively authorize service of process, yes, you should bring a motion for leave of court under FRCP 4(f)(3).

The court, after a longer discussion than was really necessary, approved service by mail. So far so good. But the court then rejected the motion for leave to serve untranslated documents. It did so in part on due process grounds, which is conceivably correct, though given that the defendant was apparently a sophisticated business entity, it’s questionable whether there was really a due process concern here. More troublesome was the judge’s conclusion that the Convention required translations. As I have previously pointed out, translations are only required if the service is to be made via the Central Authority. So the judge got this point wrong.