Canada and USA process servers
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SELECT DOCUMENT of Toronto, Canada, makes case history in New Jersey, U.S.A.

Concerned your services in Canada are not effective unless served via the Hague Convention? Read the excerpt below...

NO. CIV.01-CV-4893 (WGB)

Defendant next argues that the service was invalid under Article 10(b) because it was not effected by a competent person as required by Article 10(b). Here, the summons and complaint were served by Wilfred Schwartz, who declares that he is a process server and an agent of SELECT DOCUMENT in Toronto, Ontario, Canada. Schwartz Decl., at ¶ 1. He claims that he has been in the business of serving judicial documents in Canada for 10 years. Id.

To date, only one Court has squarely addressed the issue of competent persons under Article 10(b). The Court of International Trade, in United States v. Islip, 18 F.Supp.2d 1047, 1055-56 (CIT 1998), recognized the Convention's ambiguity as to the identity of persons competent to effect valid service under Article 10(b). It observed that Article 10(b) was the focus of litigation in only a few cases, none of which provided a reasoned explanation of how it determined that service had been effected by and through competent persons. Id. at 1056.

It is unclear whether the question of who is competent to effect service is to be determined by the law of the forum state or the law of the destination state. Id. at 1056. One who is deemed competent under federal law may not be competent under the law of most civil law States. Id. at fn. 9

In the New Jersey district court, "[s]ervice may be effected by any person who is not a party and who is at least 18 years of age ..." Fed.R.Civ.P. 4(c)(2). In Ontario, the rules of civil procedure do not expressly state who is competent to effect service of process. However, those rules "do not proscribe government officials or even private persons from effecting service of process." Islip, 18 F.Supp.2d at 1057; see also Rule 16 of Ontario Rules of Civil Procedure. Mr. Schwartz claims that he is competent to personally serve process within Ontario, Canada, the particular territory where process was served. Schwartz Decl., at ¶ 2. The Ontario rules of civil procedure state nothing to the contrary.

Reasoning that Canada's internal laws of civil procedure were flexible about who was authorized to effect service of process, the Court of International Trade chose to adopt "an expansive interpretation" of who in Canada is competent to effect service under Article 10(b). Islip, 18 F.Supp.2d at 1057. It then concluded that because under USCIT R. 4(c) "any person who is not a party and who is at least 18 years of age" was competent to effect service of a summons and complaint, personal service on the defendant in Canada by a Canadian *659 Customs Investigator who was over eighteen years of age was valid. Islip, 18 F.Supp.2d at 1057.

Additionally, although Canada heads its declaration acceding to Article 10(b) and (c) as "Service through judicial officers, notably 'huissiers', etc., of the requested State," the Court of International Trade concluded that Canada did not intend transmission of documents through judicial officers to be the only alternative to transmission through a central authority. Id. at 1056- 57. First, Canada could have, but did not, expressly limit its accession in this manner. Id. Second, the use of the word "etc." in the heading impliedly includes the "officials," "other competent persons," and "person[s] interested in a judicial proceeding" referred to in Article 10. Id. Nevertheless, even if Canada intended "judicial officers, notably 'huissiers' " to be the only alternatives, "huissiers" is a French legal term meaning process servers. See Henry Campbell Black, Black's Law Dictionary, 4th ed., at 83 (West 1968). Therefore, Canada's accession expressly permits service by persons such as Mr. Schwartz.

This Court notes that numerous courts have found personal service by a process server under Articles 10(b) and (c) to be valid in other States. See, e.g., Koehler v. Dodwell, 152 F.3d 304 (4th Cir.1998); Tamari v. Bache & Co., 431 F.Supp. 1226 (N.D.Ill.1977), aff'd, 565 F.2d 1194 (7th Cir.1977). No court holds service under Article 10(b) by a process server invalid in Canada. Additionally, a process server is deemed competent to effect service of process under the federal rules of civil procedure, Fed.R.Civ.P. 4(c)(2), and presumably under the Ontario rules of civil procedure. Finally, and perhaps most importantly, Canada's accession to the Hague Convention expressly refers to service under Article 10(b) by "huissiers" or, as the term is defined, process servers.

This Court, therefore, finds that in Canada a process server is competent to effect service of process under Article 10(b). Accordingly, personal service of the summons and complaint by Mr. Schwartz was valid under Article 10(b) of the Hague Convention and, consequently, under Fed.R.Civ.P. 4(h).

Because this Court finds that personal service of the summons and complaint by Mr. Schwartz on Jim Burke at the offices of OZ Optics Canada was valid under Article 10(b) of the Hague Convention, it need not determine whether service on NJ Optics New Jersey's agent was valid.