Dierig v. Lees Leisure Indus., 2012 U.S. Dist. LEXIS 26181 (E.D. Ky. Feb. 28, 2012):

Defendant Lees Leisure, a business entity organized under the laws of Canada, asserts that service was not made in accordance with the Hague Convention and is therefore ineffective, meriting dismissal. (Doc. # 11-1 at 16).***

Footnote 9. Defendant requests that, as a result of improper service, "this Court quash the summons and dismiss Plaintiff's claims against it." (Doc. # 11-1 at 17). The case on which Defendant relies on this issue, Collins, cites the Sixth Circuit's instruction that "'if the first service of process is ineffective, a motion to dismiss should not be granted, but the case should be retained for proper service later.'" Collins v. Westfreight Sys., Inc., No. 7:08-227-KKC, 2009 WL 1036381, at *3 (E.D. Ky. Apr. 17, 2009) (quoting Stern v. Beer, 200 F.2d 794, 795 (6th Cir. 1953)).

Pursuant to the Federal Rules of Civil Procedure, proper service of a foreign corporation, partnership, or other unincorporated association can be made "by any internationally agreed means of service that is reasonably calculated to give notice." Fed. R. Civ. P. 4(f)(1) and 4(h)(2). This shall include "those [means] authorized by the Hague Convention[.]" Id. This Court has previously held that the Hague Convention applies to service of a Canadian corporate defendant, as Canada and the United States are both parties to the Convention. See Collins v. Westfreight Sys., Inc., No. 7:08-227-KKC, 2009 WL 1036381 (E.D. Ky. Apr. 17, 2009); see also Hague Conference on Private Int'l Law, http://www.hcch.net (listing the contracting states to the Convention, as well as the effective date for its provisions and any relevant declarations made by each individual state).

While the parties agree that the Hague Convention applies, Defendant contends that Plaintiff's use of certified mail was not a proper means of service under the Convention. Article 10(a) of the Hague Convention states, "[p]rovided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad . . . ." Convention done at The Hague art. 10(a), Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163, C.T.S. 1989/2. There is disagreement among the circuits, as well as among the district courts within this circuit, whether this article allows service of process through postal channels. The Second and Ninth Circuits have held that "the word 'send' in Article 10(a) was intended to mean 'service'," thus permitting the use of postal channels as a means of proper service of process under the Hague Convention. Ackermann v. Levine, 788 F.2d 830, 838-39 (2d Cir. 1986) (holding that "[t]he service of process by registered mail did not violate the Hague Convention"); see Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir. 2004) (joining the Second Circuit's holding in Ackermann, finding that "send" in Article 10(a) includes "serve"). Both circuits viewed this interpretation of "send" as "consistent with the purpose of the Convention to facilitate international service of judicial documents." Brockmeyer, 383 F.3d at 802.

The Fifth and Eighth Circuits, however, have reached a different conclusion. Relying on "the canons of statutory interpretation," these circuits have determined that "the Hague Convention does not permit service by mail." Nuovo Pignone SpA v. STORMAN ASIA M/V, 310 F.3d 374, 384 (5th Cir. 2002); Bankston v. Toyota Motor Corp., 889 F.2d 172, 174 (8th Cir. 1989) (concluding that "sending a copy of a summons and complaint by registered mail to a defendant in a foreign country is not a method of service of process permitted by the Hague Convention"). Rather, these circuits adhere strictly to the notion that "where a legislative body 'includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [the legislative body] acts intentionally and purposely in the disparate inclusion or exclusion.'" Bankston, 889 F.2d at 174 (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). This analysis, however, ignores the overwhelming evidence demonstrating a contrary intent of the drafters.

In its motion, Defendant relies on the decision in Collins v. Westfreight Systems for the proposition that certified mail is not a proper means of service upon a Canadian corporation. Collins, 2009 WL 1036381, at *2. As a matter of first impression in the Eastern District of Kentucky, the court in Collins followed a decision in the Western District of Kentucky concluding that "such service was not permitted under Article 10(a) because the Hague Convention distinguishes between the terms 'send' and 'service,' and since Article 10(a) uses the term 'send,' service of process cannot be completed by mail." Collins, 2009 WL 1036381, at *2 (citing Uppendahl v. Am. Honda Motor Co., 291 F. Supp. 2d 531, 534 (W.D. Ky. 2003)). 10 Defendant also notes a divergent outcome from this district in Orms v. Takeda Pharmaceuticals America, Inc., but concludes that the result is based solely on the fact that the defendant was a resident of Japan and "[w]hether a defendant can be served via certified mail is a country-specific inquiry." (Doc. # 11-1 at 17 n.1); see Orms v. Takeda Pharm. Am., Inc., No. 10-160-JMH, 2010 WL 2757760 (E.D. Ky. July 12, 2010). To the extent that the Court in Orms was interpreting the plain meaning of Article 10(a), however, it was not making a country-specific determination.

Though this issue is still unsettled, and in the absence of controlling Sixth Circuit authority, the Court will follow the sound decision reached in a number of the circuits, as well as within this district, that the term "send" as used in Article 10(a) of the Hague Convention was intended to include service of process. See Ackermann, 788 F.2d at 838 (2d Cir. 1986); Brockmeyer, 383 F.3d at 802-03 (9th Cir. 2004); Research Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 926 (7th Cir. 2002) (noting that "simple certified mail . . . [is] a method [of service] permitted by Article 10(a) of the Hague Convention, so long as the foreign country does not object"). The use of postal channels is a proper means of service under Article 10(a) of the Hague Convention, provided that the State of destination does not object. ***

Signatories to the Hague Convention have repeatedly voiced their agreement with the holdings that interpret Article 10(a) to permit service of process via postal channels. The Practical Handbook, summarizing the findings of a "Special Commission of Experts," notes divergent interpretations, and comments that decisions holding that Article 10(a) does not apply to service of process "'contradict what seems to have been the implicit understanding of the delegates . . . and indeed of the legal literature on the Convention and its predecessor treaties.'" Brockmeyer, 383 F.3d at 803 (quoting Permanent Bureau of The Hague, Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 44 (2d ed. 1992)). Furthermore, at the 2003 meeting of the Special Commission on the Practical Operation of the Hague, the Commission "reaffirmed its clear understanding that the term 'send' in Article 10(a) is to be understood as meaning 'service' through postal channels." Permanent Bureau of The Hague, Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions, ¶ 55 (Oct. 28 - Nov. 4, 2003). The opening language of Article 1 of the Hague Convention explicitly states that "[t]he present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad." Convention done at The Hague art. 1 (emphasis added). In an effort to give full effect to the drafters' intent, the definition of "send" must be interpreted to include the service of process.

Under this widely supported interpretation of Article 10(a), Plaintiff's use of certified mail to serve Canadian Defendant Lees Leisure is proper as Canada has not stated its objection to the use of postal channels for service of process as provided for under this article.