In Granger v. Nesbitt, the District Court for the District of Massachusetts exercised its discretion to quash service instead of dismissing the case despite the plaintiff’s untimely and improper service on the Canadian defendants.
The case involved a car accident that occurred in Massachusetts. The plaintiff filed a negligence-based lawsuit in Massachusetts state court against two foreign parties: the driver, a Canadian resident, and his employer, a Canadian corporation. The defendants removed the case to federal court and moved to dismiss it on grounds that service was untimely and improper.
When service of process is effectuated abroad, it must comply with the Hague Convention, a multilateral treaty, to the extent the foreign country is a signatory. Under the Convention, each country is required to establish a central authority to receive requests for service of documents from other countries. Canada designated the Ministry of the Attorney General in Ontario for service. It is possible to serve defendants internationally by other means (such as by international mail or hiring a process server company) without having to go through the country’s central authority, but only if the foreign country does not object to such alternative means. In the absence of an express objection to certain methods of service, courts look to internal service rules of the country to determine if the country would object to a particular method of service.
Under Massachusetts procedural law, a summons and complaint must be served within 90 days after the filing of the complaint. Failure to do so results in dismissal unless the plaintiff can show “good cause” for the late service. Federal procedural rules are similar with a crucial distinction: recognizing the prevalence of service delays when effectuated abroad, Rule 4(m) of the Federal Rules of Civil Procedure exempts international service from the 90-day deadline; its Massachusetts counterpart does not. Because the Federal Rules only apply after an action is removed to Federal Court, service in this case was governed by state (Massachusetts) law.
To show “good cause” and avoid dismissal, the standard is whether counsel reasonably and diligently attempted to effect service within the time required. Here, service had been made more than 90 days after the filing of the complaint and, notably, counsel did not seek an extension of time, which could be construed as evidence of lack of diligence. However, the Court recognized that the COVID-19 pandemic and the need for international service made service more difficult. It also noted that counsel had made reasonable and diligent efforts to timely serve the defendants, by sending his request for service to the Canadian Ministry, making several calls to the Ministry, contacting the state court in which the case was filed and then hiring a process server to effect service after learning that service through the Ministry would be delayed. The Court concluded that, under the circumstances, service made two months after the 90-day deadline was not unreasonable and, therefore, dismissal was not required.
However, turning to the propriety of service, the Court found that service on both defendants was ineffective. Service on the Canadian individual (a driver who was unavailable due to his constant traveling) had been made by leaving the complaint and summons with another person, with the permission of the defendant. Because Canadian rules do not appear to allow service on a designated person, the Court concluded that service was invalid. Likewise, the Court found that service on the Canadian corporation was invalid because the complaint and summons were left with a receptionist, who was not a person in control or management of the corporation, as required under Canadian rules.
Nonetheless, using its discretion, and reasoning that it was reasonably likely that Plaintiff could effectively serve the defendants, the Court declined to dismiss the case and, instead, quashed the ineffective service of process and granted the Plaintiff 90 days to effectuate service.