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.
- 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.