Canada is a hard land. The weather is brutal. The moose, especially fierce. This isn't even touching on the whole hockey thing.
But the harshest part—worse than the indefatigable Mounties or the endless karaoke versions of You Oughta Know—is service.
Serving a Canadian is a real pain in the poutine.
Or so I thought.
Those with the misfortune of having to serve a foreign defendant will no doubt be aware of Rule Rule 4(f)(2)(C)(ii) which provides that a foreign individual may be served by "using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt." This rule applies to foreign corporations by way of Rule 4(h).
The issue I had always seen with service in this manner is that it's trivially easy for the defendant to simply ignore the registered mail. No signature, no return receipt, no service. It seems I was wrong about this.
The patentee in MG FreeSites Ltd. v. Scorpcast, LLC d/b/a HaulStars, C.A. No. 20-1012-MFK -- the "Haulstars"—indisputably had the clerk send the summonses to the foreign defendants (at this point I must admit that most of the defendants were actually Cypriot, but I know more about Canada so that's what I went with) via the post office with a return receipt requested. As one might expect the vast majority of these were returned either "refused" or "unexecuted" and the defendants challenged the validity of service on those grounds.
Judge Kennelly, however, found that there was no requirement that the receipt actually be signed and returned, stating:
Rule 4(f)(2)(C)(ii) requires a "form of mail . . . that requires a signed receipt," not that the receipt must actually be signed and returned. Were the rule otherwise, a foreign entity could easily defeat otherwise-proper service by refusing to accept the summons. . . . [T]he defendants in this case do not dispute that HaulStars used a form of mail that requires a signed receipt. This satisfies the plain language of Fed. R. Civ. P. 4(f)(2)(C)(ii).
MG FreeSites Ltd. v. Scorpcast, LLC d/b/a HaulStars, C.A. No. 20-1012-MFK at 28-29 (D. Del. Jan 20, 2023) (Mem. Op. & Ord.).
The Court went on to also allow alternative service on defendnats counsel as a "precautionary measure." Id. at 29. The whole opinion is worth a read—its got several granted 101 motions as well as Judge Kennelly's take on the issue of whether the complaint can provide notice of infringement for the purposes of wilfulness and indirect infringement. Look for at least one more post about it.
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