Case of the Day: New York State Thruway Authority v. Fenech

The case of the day is New York State Thruway Authority v. Fenech (N.Y. App. Div. 2012). The question was whether service by mail is permissible where the defendant is in Canada. There was no question in the case that New York law permitted service by mail; the question was whether the service also comported with the Hague Service Convention.

The Appellate Division (Third Department) had previously held, with a minority of American courts (including, I am sorry to say, the District Court here in Boston) that Article 10(a) of the Convention, which uses the word “send” rather than “serve”, permits the use of postal channels only to serve judicial documents other than the summons and complaint. This view is plainly wrong, and in today’s case, the court abandoned it in favor of the correct view, which is that Article 10 permits service of process by postal channels (except where the state of destination has objected).

The decision is plainly right. It does not, however, deal with the objection that esteemed fellow blogger and Canadian lawyer Antonin Pribetic made in our dialogue about the permissibility of service by mail in Canada under the Convention (Antonin’s point related only to Ontario, and it’s not clear in which province Fenech received the service). I think service by mail is permissible under the Convention in Canada for reasons I give in the dialogue, but I wanted to point readers to Antonin’s views (which he’s expanded on in a new post) just in case I’m wrong.

This Post Has 7 Comments

  1. Darren Vasaturo

    I’m curious if you have an opinion as to the whether service through postal channels in international litigation in the USA needs to go through the Court (as per the decision in Brockmeyer v. May by the 9th Circ.) or can be sent directly by the Plaintiff (with return receipt requested, etc.)?

    1. Ted Folkman

      Darren, it’s a complicated question, and don’t take this as legal advice. Sticking just to federal courts, my basic view is (1) in general the clerk must address and send the parcel, but (2) there may be an exception, as some courts have held, if the clerk delegates that authority to the plaintiff, and (3) in any case, a court could grant leave for the plaintiff to serve process by mail directly.

      1. Darren Vasaturo

        Thanks Ted, I guess I blew that thus far, but I have maintained that 10(a) allows direct mailing on the face of the text, against the reading of the Brockmeyer Court. Didn’t think about the clerk being able to delegate authority… This might show up on your radar before long, assuming that I make it through the motions to dismiss stage…

        1. Ted Folkman

          Let me know if you need help—I consult on this kind of stuff. Good luck!

          1. Darren Vasaturo

            I’m in Japan, I’ve filed a pro se suit against the CIA et al. in the D.C. district court for serial harassment. On the 25th I’ll be filing a Second Amended Complaint, which, presuming it’s not dismissed, will bring about some rulings on 10(a), as I’ve basically contested Brockmeyer, claiming that the text of the provision passively authorizes service by mail directly, without going through the court clerk. It continues to be a monumental task, but I believe I’ll have the document to within the 45-page limit set by the judge. 1:15-cv-01736-JEB

          2. Ted Folkman

            Oh! Well, you should find a lawyer in Washington to represent you. It’s foolhardy to try to handle a federal lawsuit on your own (I am assuming you aren’t a lawyer).

          3. Darren Vasaturo

            No funds. My first request for a pro bono panel appointment was refused. I intend to refile that… Maybe if the Complaint isn’t dismissed somebody will be interested in taking it on.

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