Lawsuit Not Dismissed Despite Ineffective and Untimely Service

An American plaintiff who filed suit against a foreign defendant managed to avoid the case being dismissed by the court. This was despite the service of process being both untimely and improper on the Canadian defendants. Instead, the Massachusetts District Court used its discretion and quashed service and did not throw out the case.


International Service


Generally, when the service of process is effectuated internationally, the method must meet the requirements of the Hague Service Convention (HSC) if the foreign country where the lawsuit will be served is a signatory to the international treaty. Under the HSC, each signatory must establish a central authority to receive requests for service of the process of legal documents from other nations. A plaintiff could serve a foreign defendant internationally by other methods—such as hiring a process server or by international mail—instead of going through the nation’s central authority. This is only allowed, however, if that foreign nation does not object to the alternative methods. If there is no express objection by the foreign nation, the courts will look to that country’s internal service rules to decide if the country would object to a specific method of service of process.


The Case


In the case at hand, Granger v. Nesbitt, a car accident happened in Massachusetts, USA. The injured plaintiff filed a lawsuit based on negligence in Massachusetts state court against two foreign defendants — the driver and the company that employed him. Both parties were Canadian residents. The defendants removed the case to federal court under diversity jurisdiction and also moved to dismiss based on improper and untimely service of process. Since the case was initially filed in state court and then removed to federal court, service in the matter was governed by Massachusetts state procedural law.


Canada, as a signatory to the HSC, designated the Ministry of the Attorney General—located in Ontario—for international service. Massachusetts procedural law requires that a summons and complaint be served within 90 days of filing the complaint with the court. Unless the plaintiff can show good cause for failing to meet this service deadline, the case will be dismissed. “Good cause” means that the attorney undertook reasonable and diligent attempts to timely serve the defendants. Federal rules of civil procedure are similar, except that they recognize that service abroad results in delays and exempts international service from the 90-day deadline. Massachusetts’s civil rules of procedure do not provide for this exemption.


The court used its discretion and held that although the service of process was ineffective (documents served on a designated person) and late (two months past the 90-day deadline) the Plaintiff could have properly effectuated service and allowed the case to continue.


International Litigation Support


If you are in need of international service of process support, contact Ancillary Legal. Our experienced team will ensure that your case moves forward properly so that you can focus on litigating. If you need assistance with court reporting, depositions, transcriptions, or videography; contact us at Elizabeth Gallo Court Reporting.