In 2017, a Supreme Court opinion made some believe that international service of process (ISOP) by mail was a good idea. According to the Court, ISOP is proper if a plaintiff can show that:
- The destination country does not object to service by mail, and
- Service by mail is authorized under “otherwise-applicable law.” Water Splash v. Menon, 137 S. Ct. 1504, 1513 (2017).
The first prong of this test is straight forward. Determining whether a destination country has objected to mail service is determined by consulting the Hague Service Convention’s status table and reviewing the destination country’s declarations and reservations. But as the recent case of Wyndham Hotel Group Canada v. 683079 Ontario Limited, Civil Action No. 17-4000 (JMV)(D. New Jersey May 4, 2018) demonstrates, the second prong of the Water Splash test is much more nuanced.
A Closer Look at Wyndham Hotel Group Canada v. 683079 Ontario Limited
Wyndham Hotel concerns a motion for a default judgment in a franchise agreement dispute. To grant the plaintiff’s motion for a default judgment, the court “must find that process was properly served on the Defendant[s].” Teamsters Pension Fund of Phila. & Vicinity v. Am. Helper, Inc., No.11-624, 2011 WL 4729023, at *2 (D.N.J. Oct. 5, 2011) (citing Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985)).
In this case, the plaintiff hired a third-party vendor (not Legal Language Services) to serve process upon the Canadian defendants. The vendor sent “a copy of the Summonses and Complaint via International Registered Mail.” Later the plaintiff “submitted a two-page letter, along with postal mail receipts” that were signed by most of the defendants as proof that service had been effected.
In concluding that the plaintiff had failed to properly serve the defendants, the court focused on Water Splash’s second prong. The “otherwise-applicable law” of the forum in this case is the Federal Rules of Civil Procedure. Water Splash, 137 S. Ct. at 1513, In Re LLS America, LLC, 2017 WL 3013260, at *2 (explaining that “[a]ny affirmative authorization of service by international mail, and any requirements as to how that service is to be accomplished, must come from the law of the forum in which the suit is filed”)[emphasis in original]; Moore v. Toyota Motor Corp., No. 17-1379, 2017 WL 5257050, at *2 (E.D. La. Nov. 13, 2017). And yet, the
[p]laintiff has not shown that it complied with any part of Rule 4(f). Plaintiff did not comply with Rule 4(f)(1), as discussed above, because the Hague Convention does not affirmatively authorize service by mail. See LT Game Intl Ltd. v. DEQ Sys. Corp., No. 2:13-4593, 2013 WL 5536195, at *2 (D.N.J. Oct. 7, 2013). Plaintiff did not comply with Rule 4(f)(2)(B) because Plaintiffs did not send a letter rogatory or letter of request. See id. Plaintiff did not comply with Rule 4(f)(2)(C)(i) because Plaintiff did not personally serve Defendants. See id. Plaintiff did not comply with Rule 4(f)(2)(C)(ii) because the Clerk of the Court did not mail the Complaint to the Defendants. See id. Plaintiff also did not comply with Rule 4(f)(3) because there was no court order in this case.
Importantly, the plaintiff had not provided the court with “sufficient information for the Court to determine that the defendants were served in compliance with Rule 4(f)(2)(A).” Under this rule
service is proper “if there is no internationally agreed means of service, or if an international agreement allows by does not specify other means, by a method that is reasonably calculated to give notice . . . as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction.” Id. [emphasis in the original]. In Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004), the Ninth Circuit held that Rule 4(f)(2)(A) authorizes personal service, but does “not authorize service by international mail,” id. at 806. The Brockmeyer court reasoned that because “the common understanding of Rule 4(f)(2)(A) is that it is limited to personal service,” and because “the explicit mention of international registered mail in Rule 4(f)(2)(C)(ii) . . . and the absence of any such mention in Rule 4(f)(2)(A),” Rule 4(f)(2)(A) does not authorize service by international mail. Id. at 806.
But even if the Rule 4(f)(2)(A) did permit ISOP by international mail, the plaintiff still failed
to show that service was valid. Plaintiffs only argument is that “Canada does not object to service by postal channels,” and only cites to one case: EDI Corp. v. Med. Mktg. Ltd., 172 F.R.D. 133 (D.N.J. 1997). D.E. 14 at 2 [emphasis in the original]. However, the EOI Corp. court was looking to documents related to the Hague Convention — not Canadian law. Plaintiff must provide analysis of methods of proper service for Canadian courts of general jurisdiction. See Julien v. Williams, No. 10-2358-T, 2010 WL 5174535, at *3 (M.D. Fla. Dec. 15, 2010) (holding that because “neither party has directed this Court to any British law regarding the propriety of service by mail. . . . this Court cannot find that [the defendant] was properly served under Rule 4(f)(2)(A).”).
In addition, the plaintiff failed to show
that Canadian law expressly authorizes service by mail — a required element. See Tatung Co., Ltd v. Hsu, No. 13-01743, 2014 WL 11514476, at *2 (C.D. Cal. Mar. 10, 2014) (finding that “under 4(f)(2)(A), service must be expressly permitted by foreign laws”). The Court has not been provided any case law or analysis that establishes that Canadian law expressly provides for service by mail in its own courts of general jurisdiction.
The bottom line is that ex ante ISOP by mail (as opposed to service under Articles 5 and 10(b) of the Hague Service Convention) may sound like a bargain in terms of both time and money. But when it comes time for the plaintiff to prove that ISOP by mail was proper, the plaintiff is likely to find that they have entered into a Faustian bargain.
To avoid finding yourself in a similar situation, contact Legal Language today. Our experienced attorneys and legal professionals will be able to assist you in effectively serving process abroad in Canada and beyond.
 Although this case is labeled “not for publication,” J. Vasquez’s discussion is very good.
 One of the defendant’s attempts at service was returned as “undeliverable.”
 The court did not discuss whether the submitted proofs were proper.
 Rule 4(f) “provides as follows: Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served at a place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country’s law, by:
(i) delivering a copy of the summons and of the complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.” (This footnote is provide as a reference and was not in the original opinion.)