Hope this is OK for the moment. I can't be bothered to format it.
1. Third Party Defendant John D. Briner, an individual, was personally served with the
Third Party Summons and Complaint on May 11, 2007, by a licensed process serving
company, to wit: Canadian Process Serving, Inc., as more particularly evidenced by
the return of service filed with this Court as Docket No. 68.
2. Third Party Defendant Esther Briner, an individual, was subject of
personal/substituted service of the Third Party Summons and Complaint on May 11,
2007. Service of same was personally delivered to John D. Briner, an attorney and
solicitor in British Columbia, Country of Canada, same being the brother of Third
Party Defendant Esther Briner. Proof of said service is more particularly set forth by
the return of service of Canadian Process Serving, Inc., Docket No. 67.
3. Third Party Defendant The Briner Group, Inc., a purported Canadian Corporation,
was subject of personal/substituted service on May 11, 2007, the Third Party
Summons and Complaint being personally delivered to John D. Briner, manager of
said corporate defendant as well as the sole person in the care, custody and control
of the offices of said Third Party Defendant in Vancouver, British Columbia, Canada.
Served was effectuated by Canadian Process Serving, Inc., as more particularly set
forth by the return of service on file with this Court as Docket No. 65.
4. Third Party Defendant OTC Filers, Inc., a purported Canadian Corporation, was
subject of personal/substituted service on May 11, 2007, the Third Party Summons
and Complaint being personally served upon John D. Briner, manager and the sole
person in care, custody and control of the offices of said Third Party Defendant.
Service was effectuated by Canadian Process Serving, Inc., as more particularly set
forth by the return of service filed with this Court as Docket No. 65.
5. As to Third Party Defendant Jason Ashdown, an individual, the Third Party
Summons and Complaint was personally served upon same May 23, 2007 by Canadian Process Serving, Inc., as more particularly evidenced by the return of
service filed with this Court as Docket No. 62.
6. On July 17, 2007, Third Party Defendants John D. Briner, Esther Briner, The Briner
Group, Inc., and OTC Filers, Inc., entered an appearance limited only to the
challenge of the sufficiency of service and jurisdiction (Docket No. 82).
7. By its Motion, (Docket No. 83) the Briner Defendants exceed the scope of its
appearance in the action, seeking to set aside the Clerk?s Default heretofore entered
pursuant to FRCP 55(a), and LR 71-1(b)(2).
II
ARGUMENT
POINTS AND AUTHORITIES
The fulcrum of the Briner Motion is that service upon the Third Party Defendants was ?never
properly affected under the Hague Convention of Service Abroad of Judicial and Extra-judicial
Documents in Civil or Commercial Matters?; specifically, that Third Party Plaintiffs failed to
comply with Article 5 of the Convention, as there is ?no evidence that a formal request was made
upon the appropriate central authority, i.e., the Ministry of the Attorney General for British
Columbia for Service, as required by Article 5 of the Convention? (Briner Motion, Pg. 3, lns 5-11.)
For service upon individuals in a foreign country to be effective, service must comply with
FRCP 4(f)(3), as well as?Hague Convention? (hereinafter the ?Act?) The Act at Article 2, requires
each contracting state to designate a central authority which will undertake to receive requests for
service coming from other contracting states which central authority will proceed to effectuate
service in accord with Articles 3 through 6 of the Act. Movant?s rely upon Article 5 which suggests
the central authority itself shall serve the document or arrange it to be served by an appropriate
agency.
However, Movant?s overlook the controlling mandate of Article 10 of the Act which provides
that ?provided the state of destination does not object, the present Convention shall not interfere
with?
(a) the freedom to send judicial documents, by postal channels, directly
to persons abroad, (b) the freedom of judicial officers, officials, or other competent persons
of the state to effect service of judicial documents directly through
the judicial officers, officials or other competent persons of the state
of destination.
( c) the freedom of any person interested in a judicial proceeding to
effect service of judicial documents directly through the judicial
officers, officials or other competent persons of the State of
destination. (emphasis added).
In the instant matter, service upon The Briner Defendants was precise, permissible and in
strict accord with Article 10 of the Act. There is no requirement that a Summons and Complaint be
first circulated through a central authority for service thereby. As the Court indicated its decision
of Taft vs. Moreau, 177 F.R.D. 201(D.Vt.) 1997, when interpreting Article 10 of the Act, same
speaks for itself, i.e., the use of registered mail, to transmit a Summons and Complaints to
Defendants who were Canadian residents did in fact comply with the Act. Taft, supra 204. Simply,
subsections (a), (b) and ( c), of Article 10 of the Act provide for service of judicial documents
directly through judicial officers, or other competent persons, as long as the country of destination
does not object. Taft at 204.
In the instant matter, the third party Summons and Complaint were served upon The Briner
Defendants in accord with Article 10, subsections (b), ( c) thereof, and service was effected by
competent persons of the state of destination, i.e., Canadian Process Serving, Inc., a licensed process
server with offices in Vancouver, British Columbia, Country of Canada, the same province and city
of residence of The Briner Defendants.
Given service of the Third Party Summons and Complaint was effectuated properly and in
accord with the Act, this Court?s final inquiry is whether service was in accord with FRCP 4(f)(3),
with the Court assuring itself the form of process satisfies the concepts of constitutional due process.
Constitutional due process requires the method of service be ?reasonably calculated to give notice?.
FRCP 4(f), see also Mullane vs. Central Hanover Bank and Trust Company, 339 U.S. 306, 314, 70
S. Ct., 652, 657 94 L.Ed. 865 (1950). Given that personal or substituted personal service was
effectuated on all of the Briner Defendants, there can be no suggestion the service at issue did not
comply with FRCP (4)(f) and comport with constitutional due process.
The Briner opposition is devoid of any evidence that the state of destination, to wit: the province of British Columbia, Country of Canada, does not permit personal service by a licensed
process server as a means of serving a Summons and Complaint within its boundaries. Moreover,
Briner?s reliance upon the holding of Volkswagenwerk vs. Aktiengesellschaft vs. Schlunk, 486 U.S.
694, 699, 108 S.Ct. 2104, 2108, 100 L.Ed.2d 722 (1988) is of no moment, as same only indicates
the Act preempts all methods of service which are inconsistent with its provisions. The service upon
the Briner Defendants was consistent with and in strict accord with Article 10(b)( c).
Movants have made no showing that the internal law of the province of British Columbia
prohibits personal service of a Summons and Complaint. Moreover, the Briner Group has cited no
authority to suggest that the Third Party Summons and Complaint were not served in strict
conformity with the Act, specifically, Section 10( c) thereof. Therefore, to the extent that Movants?
motion seeks solely to ?quash Subpoenas? (more particularly to quash service of Summons and
Complaint), same must be denied.
To the extent that the default should be set aside, there is no showing by the Briner Movants
of any good cause of not responding to the Third Party Summons and Complaint for in excess of
sixty (60) days, especially given John D. Briner, having been personally served, and having
accepted service for Esther Briner, The Briner Group, and all other Movants, is an attorney
purportedly licensed to practice law in the forum upon which the Third Party Defendants were
served.
III
As to Third Party Defendant Jason Ashdown
Third Party Defendant Jason Ashdown joined in the Briner Motion to ?Quash Subpoenas?
and set aside default. For the reasons, and upon the authorities set forth above, Defendant
Ashdown?s joinder to quash service of the Summons and Complaint must also be denied..
Third Party Defendant Jason Ashdown was subject of personal service, on May 23, 2007 by
Canadian Process Serving, Inc., as more particularly evidenced by the return of service filed with
this Court as Docket No. 62. Defendant Ashdown admits personal receipt of the Third Party
Summons and Complaint and admits its duplicity with the Briner Defendants by having Third Party
Defendant John Briner execute its Affidavit in support of relief from Default suggesting that ?good
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