Exhibit List Party

Cal. Super. - 6th Dist.July 20, 2020

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 200V368535 Santa Clara - Civil ANDREW S. MACKAY, #197074 amackay@d0nahue.com KATHLEEN B. FRIEND, #2 14593 kfriend@d0nahue.com DONAHUE FITZGERALD LLP Attorneys at Law 1999 Harrison Street, 26th Floor Oakland, California 94612-3520 Telephone: (5 10) 45 1-3300 Facsimile: (510) 451-1527 Attorneys for Plaintiff JINJU ZHANG R. Nguyen Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/24/2021 5:09 PM Reviewed By: R. Nguyen Case #20CV368535 Envelope: 7129832 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JINJU ZHANG, and individual, Plaintiff, V. BELIN YUAN, an individual; HONG LIN, an individual: CAMIWELL INC., a California corporation: and DOES 1-10, inclusive, Defendants. Case N0. 20CV368535 ASSIGNED FOR ALL PURPOSES TO JUDGE SOCRATES P. MANOUKIAN IN DEPARTMENT 20 APPENDIX OF FOREIGN AUTHORITIES IN SUPPORT OF PLAINTIFF'S OPPOSITION TO SPECIALLY APPEARING DEFENDANTS BENLIN YUAN AND HONG LIN’S NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS [Filed concurrently with Opposition Brief; Declaration 0f Kathleen B. Friend; Proof 0f Service] Date: September 7, 2021 Time: 9:00 am. Dept: 20 Judge: Hon. Socrates P. Manoukian In support 0f his Opposition t0 Specially Appearing Defendants Benlin Yuan and Hong Lin’s (collectively, the “Canadian Defendants”) Notice 0f Motion and Motion t0 Quash Service 0f Summons (the "M0ti0n"), Plaintiff Jinju Zhang hereby attaches a copy 0f the following foreign authorities cited in its Memorandum 0f Points & Authorities: APPENDIX OF FOREIGN AUTHORITIES ISO OF OPP. TO MOT. TO QUASH CASE NO. RG 1 6839681 h \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil 0r Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361; 2. Hague Convention, May 1, 1989, Treaty Series, N0. 2, Canada, 1989; 3. Straub v. A P Green, Inc. (9th Cir. 1994) 38 F.3d 448; 4. Tire Hanger Corporation v. My Car Guy Concierge Services, Inc. (C.D. Cal., NOV. 12, 2020, N0. EDCV20248JVSJEMX) 2020 WL 8172712; 5. Chamberlain v. Integraclick (N.D. Fla. Apr. 15, 201 1) 2011 WL 1456878; 6. VolkswagenwerkAktiengesellschaft v. Schlunk (1988) 486 U.S. 694; 7. Burda Media, Inc. v. Viertel (2d Cir. 2005) 417 F.3d 292; 8. Hague Conference on Private International Law, Authority, Canada - Central Authority & Practical Information, https://www.hcch.net/en/states/authorities/details3/?aid=248; 9. Rules of Civil Procedure, RRO 1990, Reg 194, S. 16.01; 10. Rules of Civil Procedure, RRO 1990, Reg 194, S. 1.03; 11. Rules 0f Civil Procedure, RRO 1990, Reg 194, S. 16.02; and 12. Hague Conference on Private International Law, Hague Convention Guidelines for Completing the Model Form, https://www.hcch.net/en/publications-and- studies/details4/?pid=6560&dtid=65 Dated: August 24, 2021 DONAHUE FITZGERALD LLP By. MAN? yw/ Andrew S. MacKay Kathleen B. Friend Attorneys for Plaintiff JINJU ZHANG -2- APPENDIX OF FOREIGN AUTHORITIES ISO OF OPP. TO MOT. TO QUASH CASE No. RG16839681 EXHIBIT 1 \.\ HCCH Connecler Pmléger Coopérer Depui51893 Connecting Protecting Cooperating Since1893 14. CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS‘ (Concluded 15 November 1965) The States signatory to the present Convention, Desiring to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time, Desiring to improve the organisation of mutual judicial assistance for that purpose by simplifying and expediting the procedure, Have resolved to conclude a Convention to this effect and have agreed upon the following provisions: Article 1 The 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. This Convention shall not apply where the address of the person to be served with the document is not known. CHAPTER | - JUDICIAL DOCUMENTS Article 2 Each Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6. Each State shall organise the Central Authority in conformity with its own law. Article 3 The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality. The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate. Article 4 If the Central Authority considers that the request does not comply with the provisions of the present Convention it shall promptly inform the applicant and specify its objections to the request. 1 This Convention, including related materials, is accessible on the website of the Hague Conference on Private International Law (www.hcch.net), under “Conventions" or under the “Service Section”. For the full history of the Convention, see Hague Conference on Private International Law, Actes et documents de Ia Dixie‘me session (1964), Tome |||, Notification (391 pp.). Article 5 The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either - a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed. Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily. If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed. That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document. Article 6 The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention. The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service. The applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities. The certificate shall be forwarded directly to the applicant. Article 7 The standard terms in the model annexed to the present Convention shall in all cases be written either in French or in English. They may also be written in the official language, or in one of the official languages, of the State in which the documents originate. The corresponding blanks shall be completed either in the language of the State addressed or in French or in English. Article 8 Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents. Any State may declare that it is opposed to such service within its territory, unless the document is to be served upon a national of the State in which the documents originate. Article 9 Each Contracting State shall be free, in addition, to use consular channels to forward documents, for the purpose of service, to those authorities of another Contracting State which are designated by the latter for this purpose. Each Contracting State may, if exceptional circumstances so require, use diplomatic channels for the same purpose. Article 10 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 of origin 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. Article 11 The present Convention shall not prevent two or more Contracting States from agreeing to permit, for the purpose of service of judicial documents, channels of transmission other than those provided for in the preceding Articles and, in particular, direct communication between their respective authorities. Article 12 The service of judicial documents coming from a Contracting State shall not give rise to any payment or reimbursement of taxes or costs for the services rendered by the State addressed. The applicant shall pay or reimburse the costs occasioned by -- a) the employment of a judicial officer or of a person competent under the law of the State of destination, b) the use of a particular method of service. Article 13 Where a request for service complies with the terms of the present Convention, the State addressed may refuse to comply therewith only if it deems that compliance would infringe its sovereignty or security. It may not refuse to comply solely on the ground that, under its internal law, it claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not permit the action upon which the application is based. The Central Authority shall, in case of refusal, promptly inform the applicant and state the reasons for the refusal. Article 14 Difficulties which may arise in connection with the transmission of judicial documents for service shall be settled through diplomatic channels. Article 15 Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that - a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention, and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend. Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled - a) the document was transmitted by one of the methods provided for in this Convention, b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document, c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed. Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures. Article 16 When a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled - a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal, and b) the defendant has disclosed a prima facie defence to the action on the merits. An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment. Each Contracting State may declare that the application will not be entertained if it is filed after the expiration of a time to be stated in the declaration, but which shall in no case be less than one year following the date of the judgment. This Article shall not apply to judgments concerning status or capacity of persons. CHAPTER II - EXTRAJUDICIAL DOCUMENTS Article 17 Extrajudicial documents emanating from authorities and judicial officers of a Contracting State may be transmitted for the purpose of service in another Contracting State by the methods and under the provisions of the present Convention. CHAPTER III - GENERAL CLAUSES Article 18 Each Contracting State may designate other authorities in addition to the Central Authority and shall determine the extent of their competence. The applicant shall, however, in all cases, have the right to address a request directly to the Central Authority. Federal States shall be free to designate more than one Central Authority. Article 19 To the extent that the internal law of a Contracting State permits methods of transmission, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions. Article 20 The present Convention shall not prevent an agreement between any two or more Contracting States to dispense with - a) the necessity for duplicate copies of transmitted documents as required by the second paragraph of Article 3, b) the language requirements of the third paragraph of Article 5 and Article 7, c) the provisions of the fourth paragraph of Article 5, d) the provisions of the second paragraph of Article 12. Article 21 Each Contracting State shall, at the time of the deposit of its instrument of ratification or accession, or at a later date, inform the Ministry of Foreign Affairs of the Netherlands of the following - a) the designation of authorities, pursuant to Articles 2 and 18, b) the designation of the authority competent to complete the certificate pursuant to Article 6, c) the designation of the authority competent to receive documents transmitted by consular channels, pursuant to Article 9. Each Contracting State shall similarly inform the Ministry, where appropriate, of - a) opposition to the use of methods of transmission pursuant to Articles 8 and 10, b) declarations pursuant to the second paragraph of Article 15 and the third paragraph of Article 16, c) all modifications of the above designations, oppositions and declarations. Article 22 Where Parties to the present Convention are also Parties to one or both of the Conventions on civil procedure signed at The Hague on 17th July 1905, and on 1st March 1954, this Convention shall replace as between them Articles 1 to 7 of the earlier Conventions. Article 23 The present Convention shall not affect the application of Article 23 of the Convention on civil procedure signed at The Hague on 17th July 1905, or of Article 24 of the Convention on civil procedure signed at The Hague on 1st March 1954. These Articles shall, however, apply only if methods of communication, identical to those provided for in these Conventions, are used. Article 24 Supplementary agreements between Parties to the Conventions of 1905 and 1954 shall be considered as equally applicable to the present Convention, unless the Parties have otherwise agreed. Article 25 Without prejudice to the provisions of Articles 22 and 24, the present Convention shall not derogate from Conventions containing provisions on the matters governed by this Convention to which the Contracting States are, or shall become, Parties. Article 26 The present Convention shall be open for signature by the States represented at the Tenth Session of the Hague Conference on Private International Law. It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 27 The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification referred to in the second paragraph of Article 26. The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth day after the deposit of its instrument of ratification. Article 28 Any State not represented at the Tenth Session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 27. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force for such a State in the absence of any objection from a State, which has ratified the Convention before such deposit, notified to the Ministry of Foreign Affairs of the Netherlands within a period of six months after the date on which the said Ministry has notified it of such accession. In the absence of any such objection, the Convention shall enter into force for the acceding State on the first day of the month following the expiration of the last of the periods referred to in the preceding paragraph. Article 29 Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned. At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force for the territories mentioned in such an extension on the sixtieth day after the notification referred to in the preceding paragraph. Article 30 The present Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 27, even for States which have ratified it or acceded to it subsequently. If there has been no denunciation, it shall be renewed tacitly every five years. Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before the end of the five year period. It may be limited to certain of the territories to which the Convention applies. The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other Contracting States. Article 31 The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 26, and to the States which have acceded in accordance with Article 28, of the following - a) the signatures and ratifications referred to in Article 26; b) the date on which the present Convention enters into force in accordance with the first paragraph of Article 27; c) the accessions referred to in Article 28 and the dates on which they take effect; d) the extensions referred to in Article 29 and the dates on which they take effect; e) the designations, oppositions and declarations referred to in Article 21; f) the denunciations referred to in the third paragraph of Article 30. In witness whereof the undersigned, being duly authorised thereto, have signed the present Convention. Done at The Hague, on the 15th day of November, 1965, in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Tenth Session of the Hague Conference on Private International Law. EXHIBIT 2 1989 United Nations Treaty Series Nations Unies Recueil des Traités 499 No. 9432. CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS. OPENED FOR SIGNATURE AT THE HAGUE ON 15 NOVEMBER 1965' ACCESSION Instrument deposited with the Government of the Netherlands on: 26 September 1988 CANADA (With effect from 1 May 1989.) With the following declarations under article 21: I. Transmission through consular or diplomatic channels (Articles 8 and 9) A. Acceptance On accession, Canada has not declared that it objects to service by consular or diplomatic channels on its territory. Receiving authority (Article 9, paragraph 1) The Central Authorities in Canada designated in accordance with Articles 2 and 18 of the Convention are competent to receive requests for service transmitted by a foreign consul within Canada. B. Forwarding to the Contracting States Canada does not object to service by consular channels of Canadian documents abroad providing that the recipient accepts this method of service. II. Transmission through postal channels (Article 10, sub-paragraph a) A. Acceptance Canada does not object to service by postal channels. B. Forwarding to other Contracting States Canadian Law allows the use of postal channels to serve Canadian documents to persons abroad. III. Service through judicial officers, notably "huissiers", etc. of the requested State (Article 10, sub-paragraphs b) and c)) On accession, Canada has not declared to object to methods of service of Article 10, sub-paragraphs b) and c). IV. Other direct channels (Article 11); special agreements (Articles 24 and 25) Canada is party to bilateral conventions on civil procedure with the following States: Austria ................................... Canada Treaty Series, 1935, No. 16 Belgium................................... Canada Treaty Series, 1928, No. 16 Czechoslovakia............................ Canada Treaty Series, 1928, No. 17 Denmark.................................. Canada Treaty Series, 1936, No. 4 Finland ................................... Canada Treaty Series, 1936, No. 5 France.................................... Canada Treaty Series, 1928, No. 15 Germany.................................. Canada Treaty Series, 1935, No. 11 1 United Nations, Treaty Series, vol. 658, p. 163; for subsequent actions, see references in Cumulative In dexes Nos. 10 to 15, as well as annex A in volumes 955, 987, 1088, 1098, 1102, 1136, 1157, 1194, 1240, 1248, 1261, 1276, 1279, 1286, 1312, 1318, 1330, 1352, 1357, 1401, 1434 and 1477. Vol. 1529, A-9432 500 United Nations - Treaty Series • Nations Unies - Recueil des Traités 1989 Greece.................................... Canada Treaty Series, 1938, No. 11 Hungary .................................. Canada Treaty Series, 1939, No. 6 Iraq ...................................... Canada Treaty Series, 1938, No. 12 Italy...................................... Canada Treaty Series, 1938, No. 14 Netherlands ............................... Canada Treaty Series, 1936, No. 2 Norway................................... Canada Treaty Series, 1935, No. 15 Poland.................................... Canada Treaty Series, 1935, No. 18 Portugal .................................. Canada Treaty Series, 1935, No. 17 Spain..................................... Canada Treaty Series, 1935, No. 12 Sweden................................... Canada Treaty Series, 1935, No. 13 Turkey .................................:. Canada Treaty Series, 1935, No. 19 Yugoslavia ................................ Canada Treaty Series, 1939, No. 4 GUARANTEES UNDER THE CONVENTION Declarations made pursuant to Articles 15, paragraph 1 or 16, paragraph 3 1. Stays of entry (Article 15, paragraph 2) Canada declares that the judges may give judgment under the conditions stated in Article 15 of the Convention. 2. Relief from expiration of the period of time for appeal (Article 16, paragraph 3) Canada declares that an application filed under Article 16 of the Convention will not be entertained if it is filed after the expiration of one year following the date of the judgment, except in exceptional cases determined by the rules of the Court seized of the matter. Certified statement was registered by the Netherlands on 27 April 1989. Vol. 1529. A-9432 EXHIBIT 3 Straub v. A P Green, lnc., 38 F.3d 448 (1994) 38 F.3d 448 United States Court 0f Appeals, Ninth Circuit. Harold E. STRAUB, et a1., Plaintiffs-Appellees, V. A P GREEN, INC., et a1., Defendants, and Atlas Turner, Inc., a foreign corporation, Defendant-Appellant. No. 92-16204. | Argued and Submitted Sept. 14, 1994. | Decided Oct. 17, 1994. Synopsis Retired worker brought action against Canadian company which produced asbestos, and default judgment was entered for worker. Producer moved to set aside judgment for lack of jurisdiction, and the United States District Court for the District ofArizona, Stephen M. McNamee, J., denied motion. Producer appealed, and the Court of Appeals, Farris, Circuit Judge, held that: (1) company which was fully owned by Crown Corporation of Province of Quebec was “foreign state” for purposes of Foreign Sovereign Immunities Act (FSIA); (2) FSIA applied to suit where defendant was “foreign state” even if party was not “foreign state” at time of alleged wrongdoing; (3) service of process in Canada under provisions of Hague Convention at time Canada was not signatory to convention did not constitute valid service under FSIA; (4) clause in FSIA allowing delivery to officer or agent only permitted service Which occurred in United States; (5) substantial compliance was sufficient to establish process under FSIA by means reasonably calculated to give actual notice; and (6) instrumentality of foreign state was not “foreign state” for purposes of provisions ofFSIA applicable to default judgments. Remanded. Attorneys and Law Firms *450 Paul W. Holloway & Kevin B. Sweeney, Holloway, Odegard & Sweeney, Phoenix, AZ, for defendant-appellant, Atlas Turner, Inc. Robert George Begam, Dena Rosen Epstein, Begam, Lewis, Marks, Wolfe & Dasse, Paul A. Jozef, Phoenix, AZ, for plaintiffs-appellees, Harold E. Straub, et a1. Appeal from the United States District Court for the District ofArizona. Before: FARRIS, BEEZER, Circuit McLAUGHLIN*, District Judge. Judges, and Opinion FARRIS, Circuit Judge. Atlas Turner appeals the district court's denial of its motion to set aside a default judgment. Atlas Turner contends that the district court lacked jurisdiction because service of process was not effective under the Foreign Sovereign Immunities Act. We havejurisdiction ofthe timely appeal under 28 U.S.C. § 1291. We remand to determine whether Atlas Turner had actual notice in 1986 of the complaint. I. BACKGROUND PlaintiffHarold Straub sued Atlas Turner for asbestos-related injuries. He claims his injun'es were caused by exposure to Atlas Turner's products in Arizona (from 1967 t0 1968) and in Illinois (from 1948 to 1959) while he was employed by Armstrong Contracting & Supplying Company. He mailed a copy of the summons and complaint in the English language by registered mail, return receipt requested, to Atlas Turner in Montreal, Quebec, Canada. The mail receipt was signed by “C. Benoit” and returned to Straub. Atlas Turner did not respond to the suit. A default judgment was entered against it on April 1, 199 1. Atlas Turner’s motion to set aside the judgment for lack ofjurisdiction was denied by the district court on May 27, 1992. Atlas appeals. We review de novo. *451 Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir. 1 994). The district court's findings of fact relevant to its determination of subj ect matter jurisdiction are reviewed for clear error. Id. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 Straub v. A P Green, lnc., 38 F.3d 448 (1 994) II. APPLICABILITY 0F FOREIGN SOVEREIGN IMMUNITIES ACT To determine whether Straub's service of process was effective, we must initially decide whether the Foreign Sovereign Immunities Act applies. The FSIA applies to lawsuits against “foreign states.” 28 U.S.C. § 1602. The term foreign state includes an “agency or instrumentality of a foreign state.”1 The facts are undisputed. At the time Straub filed his lawsuit, Atlas Turner was fully owned by Societe Nationale de L‘Amiante, a Crown Corporation ofthe Province of Quebec. It was therefore an instrumentality of a foreign state. It is not disputed that Atlas Turner was not a foreign state at the time Straub was exposed to the asbestos. Straub contends that the FSIA does not apply because Atlas Turner was not an instrumentality of Quebec at the time of the acts giving rise to this lawsuit. We reject the argument. Without directly addressing the issue, we have applied the FSIA to cases in which foreign governments acquired control over private entities after the conduct underlying the lawsuit has occurred. See West v. Multibanco Comermex, S.A., 807 F.2d 820, 823 (9th Cir.), cert. denied, 482 U.S. 906, 107 S.Ct. 2483, 96 L.Ed.2d 375 (1987). In Wolfv. Banco Nacional de Mexico, S.A., 739 F.2d 1458, 1460 (9th Cir.1984), cert. denied, 469 U.S. 1108, 105 S.Ct. 784, 83 L.Ed.2d 778 (1985), the court went even further, and implied that the FSIA may be applicable if a party that becomes a “foreign state” after the commencement of a lawsuit promptly brings its status as a “foreign state” to the district court's attention. Straub's reliance on cases from other circuits does not support his argument. The Sixth and Eighth Circuits have held that the FSIA is applicable where a defendant is a foreign state at the time of the alleged wrongdoing. See General Elec. Capital Corp. v. Grossman, 991 F.2d 1376 (8th Cir.1993); Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445 (6th Cir.1988). Neither court addressed the issue ofwhether the FSIA applies when a party is not a foreign state at the time of the alleged wrongdoing but becomes one prior to the date on which the lawsuit is filed. Straub's argument derives some support from In re Chase & Sanbom Corp. v. Granfinanciera, 835 F.2d 1341, 1347-48 (11th Cir.1988), reversed 0n other grounds, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), where the court held that the defendant “was not an instrumentality of the Colombian government at the time of the transactions and thus would not be protected by the provisions of FSIA.” However, in Granfinanciera the court also took into account the fact that the plaintiffs filed their lawsuit before the defendant was nationalized by the Colombian government. See id. at 1347 (“FSIA is inapplicable to the case at bar because the transfers in question and the suit t0 recover those transfers occurred before Granfinanciera was nationalized”) (emphasis added). Unlike Granfinanciera, Straub filed his lawsuit after Atlas became a “foreign state.” Straub has cited no precedent holding that a party that is a foreign state when the litigation commences is not entitled to the protections of the FSIA. We have found none. We hold that the FSIA applies when a party is a foreign state at the time the lawsuit is filed, even if that party was not a foreign state at the time of the alleged wrongdoing. *452 III. SERVICE OF PROCESS REQUIREMENTS UNDER THE FSIA If the FSIA is applicable, Atlas Turner recognizes that it is not entitled to immunity from suit because one of the exceptions to foreign sovereign immunity in § 1605 applies. It also recognizes that it has minimum contacts with the relevant geographical area, the United States. Meadows v. Dominican Republic, 817 F.2d 517, 523 (9th Cir.) (relevant geographical area for evaluating a party's contacts under the FSIA is “the entire United States, not merely [the forum state]”), cert. denied, 484 U.S. 976, 108 S.Ct. 486, 98 L.Ed.2d 485 (1987). Atlas Turner argues instead that we should set aside the default judgment because Straub did not properly serve Atlas Turner with either the summons and complaint or a copy of the default judgment. A. Service 0f the Summons and Complaint 1. Service under§ 1608(b)(2). Section 1608(b)(2) provides that if no special arrangement for service between the parties exists, service may be effected by delivery of a copy of the summons and complaint either to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States; or in accordance With an applicable international convention on service of judicial documents. The district court ruled that Straub had complied with the service requirements of § 1608(b)(2). The basis for the court's ruling was that (1) Atlas was served in accordance with the Hague Convention and (2) both Canada and the United States WESTLAW © 2021 Thomson Reuters. No Claim to original U.S. Government Works. 2 Straub v. A P Green, lnc., 38 F.3d 448 (1 994) are signatories to the Hague Convention. Canada, however, did not become a signatory to the Hague Convention until May 1, 19892 ; Atlas was allegedly served in 1986. Thus, the district court's ruling cannot be affirmed on the basis of compliance with the Hague Convention. Straub asserts that service was effected in compliance with the first clause of § 1608(b)(2). He contends that the phrase “any other agent authorized by appointment or by law to receive service of process in the United States” refers to a class of agents Who have the general authority to receive service of process in the United States but who are not necessarily in the United States at the time they are served. Although Straub's interpretation of the statute is certainly plausible, it is also plausible that Congress meant for the modifying phrase “in the United States” to apply to the “by delivery” language. When interpreting a statute, we ordinarily first look to the plain meaning of the language used by Congress. See Whilshire WestwoodAssocs. v. Atlantic Richfield, 881 F.2d 801, 803 (9th Cir.1989). But if the statute is ambiguous, we consult the legislative history, to the extent that it is of value, to aid in our interpretation. Stanton Rd. Assocs. v. Lohrey Enters., 984 F.2d 1015, 1019 (9th Cir. 1 993). Because of the ambiguity in the plain meaning of the language, we examine the legislative history and the structure of § 1608. The House Report makes abundantly clear that “subsection (b)(2) provides for service upon agents in the United States of the agency or instrumentality.” See 1976 U.S.Code Cong. & Ad.News 6604, 6624. Further, § 1608(b)(3), Which applies if service cannot be made under subsections (b)(l) and (b)(2), establishes a procedure for serving an instrumentality of a foreign state in a foreign country. One of the requirements of § 1608(b)(3) is that a copy of the complaint be translated into the official language of that country. See 28 U.S.C. § 1608(b)(3). The translation requirement in § 1608(b)(3) would have little meaning if parties could circumvent it by claiming they served an “authorized agent” in the foreign country pursuant to § 1608(b)(2). Thus, we hold that the first clause of § 1608(b)(2) only authorizes service 0f process in the United States. Straub did not serve an authorized agent in the United *453 States, and therefore service ofprocess was not effective under § 1608(b) (2). 2. Service under § 1608(b)(3) Straub also contends that he properly served Atlas under § 1608(b)(3). That section provides that if service cannot be made under subsections (b)(l) and (b)(2), service can be effected if reasonably calculated to give actual notice, by delivery of a copy of the summons and complaint, together with a translation of each into the official language of the foreign state- (B) by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the agency or instrumentality to be served... 28 U.S.C. § 1608(b)(3). Straub did not strictly comply with section 1608(b)(3). Although Straub wrote his complaint in English, one of the official languages of Canada} the complaint was not dispatched by the clerk of the court. Thus, we must decide whether Straub's failure to have the complaint dispatched by the clerk of the court renders service ineffective. Courts in other circuits have rejected a strict reading of § 1608(b)(3), and have upheld service where the serving party “substantially complied” with the FSIA, even though the complaint was neither translated nor dispatched by the clerk of the court. See Sherer v. Construcciones Aeronauticas, S.A., 987 F.2d 1246 (6th Cir.) (omission oftranslation of complaint did not warrant dismissal), cert. denied, 510 U.S. 818, 114 S.Ct. 72, 126 L.Ed.2d 41 (1993); Banco Metropolitano v. Desarrollo de Autopistas y Carreteras de Guatemala, 616 F.Supp. 301, 304 (S.D.N.Y.1985) (complaint not translated and not dispatched by clerk); Obenchain Corp. v. Corporation Nacionale de Inversiones, 656 F.Supp. 435 (W.D.Pa.1987) (complaint not dispatched by clerk of court). When applying the substantial compliance test, the pivotal factor is whether the defendant receives actual notice and was not prejudiced by the lack of compliance with the FSIA. See id.; see also Harris Corp. v. National Iranian Radio and Television, 691 F.2d 1344 (11th Cir.1982); Velidor v. L/P/G Benghazi, 653 F.2d 812 (3d Cir.1981), cert. dismissed, 455 U.S. 929, 102 S.Ct. 1297, 71 L.Ed.2d 474 (1982). Atlas Turner erroneously contends that courts upholding service based on substantial compliance with the FSIA have required a showing of “exigent” circumstances. Although exigent circumstances were present in Harris (the Iranian revolution), they were absent in both Sherer and Banco Metropolitano, the two most analogous cases. Similarly, in the context ofthe Federal Rules WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 Straub v. A P Green, Inc., 38 F.3d 448 (1994) ofCiVil Procedure we have held that “substantial compliance” with the service requirements ofRule 4 is sufficient so long as the opposing party receives sufficient notice ofthe complaint. See Chan v. Society Expeditions, Ina, 39 F.3d 1398, 1404 (9th Cir.1994); Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Ina, 840 F.2d 685, 688 (9th Cir.1988). We formally adopt a substantial compliance test for the FSIA. This holding is consistent with our recent decision in Gerritsen v. Consulado General de Mexico, 989 F.2d 340, 345 (9th Cir.1993), cert. denied, 510 U.S. 828, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993). In Gerritsen we held that a plaintiff failed to perfect service under § 1608(a)(3) because he did not serve the Mexican Consulate with a Spanish translation of the complaint. Failure to deliver a complaint in the correct language is such a fundamental defect that it fails both a “strict compliance” test and a “substantial compliance” test. Applying the substantial compliance test, Straub's failure to dispatch the complaint by the clerk of the court did not per se deprive the district court of jurisdiction. The substantial compliance test, however, is satisfied only ifAtlas Turner received *454 actual notice of the lawsuit. The burden of proving actual notice remains with Straub. See Hirsch v. Blue Cross, Blue Shield, 800 F.2d 1474, 1477 (9th Cir.1986) (stating that plaintiff has the burden of establishing jurisdiction). The summons and complaint were received on September 22, 1986, at Atlas Turner's corporate headquarters and signed for by “C. Benoit.” The district court concluded that Atlas Turner had actual notice of the summons and complaint because Atlas Turner's attorneys contacted the district court about the status of the case prior to the entry of default judgment on April 1, 1991. This is insufficient to establish actual notice. We recognize that the district court could have taken judicial notice of communications between it and Atlas Turner's attorneys under Federal Rule of Evidence 201. However, Rule 201 requires that a “judicially noticed fact must be one not subject to a reasonable dispute in that it is (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” The only “source” to which we could turn to verify the accuracy of the district court's statement that it received communications from Atlas Turner's attorneys prior to April 1, 1991, is the district judge himself. The problem with the court's conclusion is that Atlas Turner's contacts with the court prior to April 1991 are not inconsistent with Atlas Turner's claims that it had no notice of the summons and complaint mailed in I 986. That Atlas Turner contacted the court in 1990 or 1991 indicates only that it became aware of the default proceedings at some time prior to its contact. This falls far short of a showing of actual notice of the complaint mailed in 1986. By 1990, the deadline for filing an answer to Straub's complaint had long since passed. Straub has not satisfied his burden of proving actual notice. Because actual notice was not the dispositive issue before the district court, however, we remand for further consideration ofthe issue. In so doing we do not ignore the fact that service “by clerk of the court” would have probably resulted in a proper return of service. Straub's problem with proof, if any, is of his own making. B. Service of a copy 0f the default judgment Atlas Turner contends that it was not served with a copy ofthe default judgment pursuant to § 1608(e) of the FSIA. Section 1608(6) provides: No judgment by default shall be entered by a court of the United States or ofa State against a foreign state, a political subdivision thereof, 0r an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to reliefby evidence satisfactory to the court. A copy of any such default judgment shall be sent to the foreign state or political subdivision in the manner described for service in this section. The district court held that Straub was not required to serve notice of the default judgment on Atlas Turner. The court noted that the second sentence of § 1608(e), which requires service of a copy of the default judgment, refers only to a “foreign state or political subdivision,” whereas the first sentence of § 1608(e) refers to “a foreign state, a political subdivision thereof 0r an agency or instrumentality of a foreign state.” The court reasoned that Atlas Turner was not entitled to service of the default judgment because the second sentence of § 1608(e) makes no reference to an “instrumentality of a foreign state.” We agree. Section 1603(a) makes clear that the term foreign state includes instrumentalities of foreign states except as used in section I608. 28 U.S.C. § 1603(a). Thus, when the term foreign state is used in § 1608, it does not encompass instrumentalities of foreign states. But see LeDonne v. Gulf Air, Ina, 700 F.Supp. 1400, 1414 (E.D.Va.1988) (setting aside default judgment partly on the basis of plaintiffs failure to serve instrumentality of foreign state with copy of default judgment). Although Atlas Turner's argument gains some WESTLAW © 2021 Thomson Reuters. No claim t0 original U.S. Government Works. 4 Straub v. A P Green, lnc., 38 F.3d 448 (1994) support from the legislative history, resort to the legislative history is not necessary when the language of the statute is not ambiguous. See *455 Brooker v. Desert Hosp. Corp, 947 F.2d 412, 414 (9th Cir.1991). Atlas Turner did not need to be served With a copy of the default judgment. IV. CONCLUSION We hold that Straub's failure to dispatch the summons and complaint by the clerk of the court did not per se deprive the district court of jurisdiction, but we REMAND for a determination of whether Atlas Turner had actual notice of the complaint in 1986. Ifnot, the matter is at an end. If so, the default was proper and judgment may enter. Each side shall pay its own costs. REMANDED. All Citations 38 F.3d 448 Footnotes * The Honorable Linda Hodge McLaughlin, United States District Judge for the Central District of California, sitting by designation. 1 An “agency or instrumentality of a foreign state” is defined in subsection (b) as any entity- (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(0) and (d) of this title, nor created under the laws of any third country. 28 U.S.C. § 1603(b). 2 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, May 1, 1989, Treaty Series, No. 2, Canada, 1989. 3 The official languages of Canada are English and French. Can. Const. (Constitution Act, 1982) pt. | (Canadian Charter of Rights and Freedoms), § 16. Moreover, the Canadian Constitution provides that either French or English may be used in the courts of Quebec. Can. Const. (British North America Act, 1867), § 133. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 5 EXHIBIT 4 Tire Hanger Corporation v. My Car Guy Concierge Services, Inc., Slip Copy (2020) 2020 WL 817271 2 2020 WL 8172712 Only the Westlaw citation is currently available. United States District Court, C.D. California. The TIRE HANGER CORPORATION V. MY CAR GUY CONCIERGE SERVICES, INC. et a1. Case No. EDCV 20-248 JVS (JEMx) | Filed 11/12/2020 Attorneys and Law Firms Christopher W. Arledge, Nathaniel L. Dilger, One LLP, Newport Beach CA, for The Tire Hanger Corporation. Steven John Corr, Irvine CA, for My Car Guy Concierge Services, Inc. Proceedings: [IN CHAMBERS] Order Requestsm Default Regarding The Honorable James V. Selna, U.S. District Court Judge *1 Plaintiff The Tire Hanger Corporation (“Tire Hanger”) requests entry of default as to Defendant My Car Guy Concierge Services, Inc. d/b/a Hoist Hanger (“Hoist Hanger”). Hoist Hanger Default Request, ECF No. 64. Tire Hanger also requests entry ofdefault as to Defendant Brendan Daley (“Daley”). Daley Default Request, ECF No. 65. For the following reasons, the Court GRANTS the requests and directs the Clerk to enter default against Hoist Hanger and Daley. I. Background Hoist Hanger and Daley are each alleged to be Canadian citizens. Complaint, ECF No. 1, 1m 2, 4. Tire Hanger filed its complaint in the instant action on February 7, 2020. Complaint. On July 29, Tire Hanger filed proof of service as to Hoist Hanger and Daley. Hoist Hanger Proof of Service, ECF No. 56; Daley Proof of Service, ECF No. 55. Each was served on June 5, 2020, by leaving a copy of the complaint, summons, and other associated documents with Daley. Hoist Hanger Proofof Service, ECF No. 56; Daley Proofof Service, ECF No. 55. Since then, neither Hoist Hanger nor Daley have filed any answer or otherwise defended themselves in this actlon. II. Legal Standard Under Federal Rule of Civil Procedure 55(a), default may be entered when a party “against whom a judgment for affirmative relief is sought has failed to plead 0r otherwise defend, and that failure is shown by affidavit or otherwise.” A prerequisite to entering default against a party is that the party must have been properly served. Under Federal Rule of Civil Procedure 4(i), an individual “may be served at a place not within any judicial district of the United States: (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents ...” (the “Hague Convention”). “The Hague Convention's provisions authorize service on a defendant in a foreign jurisdiction by providing a set of guidelines that contracting states must follow.” Chamberlain L Integlgaclick, 2011 WL 145678, at *2 (N.D. Fla. Apr. 15, 2011); m Hague Convention, Nov. 15, 1965, 20 U.S.T. 361. “The main purpose of the Hague Convention on Service Abroad is ‘to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.’ ” I_d- (Quoting Volkswagenwerk Aktiengesellschaft L Schlunk. 286 U.S. 694, 698 (1988)). “The Hague Convention provides for several alternate methods 0f service: (1) service through the Central Authority of member states; (2) service through consular channels; (3) service by mail if the receiving state does not object; and (4) service pursuant to the internal laws ofthe state.” Burda Media m L Viertel, 417 F.3d 292, 300 (2d Cir. 2005) (citing Hague Convention Arts. 5, 6, 8, 9 & 10). III. Discussion The only matter at issue is whether service was proper under the Hague Convention. Canada is a signatory to the Hague Convention. Hague Convention, May 1, 1989, Treaty Series, No. 2, Canada, 1989; see Straub V. A P m, m, 38 F.3d 448, 452 (9th Cir. 1994). Since Tire Hanger WESTLAW © 2021 Thomson Reuters. No Claim to original U.S. Government Works. 1 Tire Hanger Corporation v. My Car Guy Concierge Services, Inc., Slip Copy (2020) 2020 WL 817271 2 served Hoist Hanger and Daley through personal service, to satisfy the requirements of the Hague Convention this personal service must have been performed pursuant to the internal laws of Canada. E Hague Convention Art. 10;m Media, 41 7 F.3d at 300. At the time that he was served, Daley was in Chilliwack, British Columbia, meaning that British Columbia's Supreme Court Rules govern here. E Independent Film Development CorporationL Junior Capital m, 2015 WL 12778352, at *4 (CD. Cal. July 9, 2015). *2 The British Columbia Supreme Court Rules “generally require that notice of a civil claim be served by personal service.” Li. (citing B.C. Reg. 168/2009, § 4-3(1)). Specifically, personal service on an individual is effected by “leaving a copy of the document With him or her.” B.C. Reg. 168/2013, § 4-3(2). Personal service on a corporation is effected by “by leaving a copy of the document with the manager, cashier, superintendent, treasurer, secretary, clerk or agent of the corporation or of any branch or agency of the corporation in British Columbia.” I_d. § 4-3(3). Here, Tire Hanger served the complaint, summons, and other related documents on both Hoist Hanger and Daley by leaving the complaint with Daley.fl ECF Nos. 55-56. This easily satisfies the requirements for personal service as to Daley himself. As Tire Hanger's counsel Christopher Arledge states in his declaration that Daley is “one ofthe owners/officers” of Hoist Hanger, this also satisfies the requirements for personal service on a corporation. ECF No. 64-1, 1] 4. Daley constitutes an “agent” with whom a copy of the documents may be left. The Court therefore finds that service conformed with Rule 4(i), the Hague Convention, and with British Columbia's Supreme Court Rules. Service was therefore proper, and default as to both Defendants is appropriate. IV. Conclusion For the foregoing reasons, the Court GRANTS the requests. IT IS SO ORDERED. All Citations Slip Copy, 2020 WL 81727 12 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 EXHIBIT 5 Chamberlain v. Integraclick, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 1456878 Only the Westlaw citation is currently available. United States District Court, N.D. Florida, Tallahassee Division. Kevin CHAMBERLAIN, an individual Ned Newcomer, an individual, and Jerald Adler, an individual, on their own behalf and on behalf of all others similarly situated, Plaintiff, V. INTEGRACLICK, INC., a Delaware corporation, d/b/a Clickbooth, Just Think Media, a Canadian Company, d/ b/a Farend Services Limited, Defendant. No. 4:1o-CV-oo477-SPM-Wcs. | April 15, 2011. Attorneys and Law Firms David P. Healy, David P Healy PL, Tallahassee, FL, for Plaintiff. Eric Scott Grindley, Eric S. Grindley PA, Sarasota, FL, J. Martin Hayes, Akerman Senterfitt, Tallahassee, FL, Karl Stephen Kronenberger, Kronenberger Burgoyne LLP, San Francisco, CA, for Defendant. ORDER DENYING DEFENDANT'S MOTION T0 QUASHSERVICE 0FPROCESS STEPHAN P. MICKLE, Chief Judge. *1 THIS CAUSE comes before the Court on Defendant's motion to quash service of process and dismiss the complaint. Doc. 5. Defendant accompanied its motion With a memorandum of supporting law, Doc. 5; an affidavit from Michael Stefaniuk, Vice President of Engineering for 1021018 Alberta Ltd., Doc. 6; and a copy of the Clickbooth.com Advertisers Terms and Conditions contract, Doc. 6, Ex. A. Plaintiffs filed a response in opposition to Defendant's motion, Doc. 22, which included the following attachments: (1) Declaration of Benjamin H. Richman, attorney for Plaintiffs, Doc. 22, EX. A; (2) Service papers under The Hague Convention, Doc. 22, Ex. A-l; (3) Affidavit of service, Doc. 22, EX. A-2; (4) Notice of appearance by J. Martin Hayes, Doc. 22, EX. A-3; (5) Notice of deposition, Doc. 22, EX. A-4; and (6) Letter from Karl S. Kronenberg dated December 8, 2010, Doc. 22, Ex. A-S. For the reasons stated below, Defendant's motion will be DENIED. Background Plaintiffs Kevin Chamberlain, Ned Newcomer, and Jerald Adler, as individuals and 0n behalfof others similarly situated [hereinafter “Plaintiffs”], brought the instant action against Clickbooth and Just Think Media in the Circuit Court of the State 0fFlorida in and for the Second Judicial Circuit 0fLeon County, Florida on December 1, 2009. Just Think Media, a foreign corporation established and doing business in the province of Alberta, Canada, removed Plaintiffs' state court case to this Court pursuant to 28 U.S.C. §§ 1332(d)(2) and 1441. Plaintiffs brought suit against Just Think Media and Clickbooth alleging that defendants engaged in fraudulent trade practices, deceptive online advertising, and deceptive billing relating to the sale of work-at-horne products. Plaintiffs allege that, with the help of Clickbooth and a carefully devised scheme, Just Think Media collects Plaintiffs' credit card information and charges and collects excessive monthly fees from its consumers. Doc. 22, p. 2. In its motion, Just Think Media petitions the Court to dismiss Plaintiffs' action for failure to effect proper service ofprocess. Just Think Media bases its motion upon two grounds: (1) Plaintiffs did not comply with the Hague Convention on Service Abroad and (2) Plaintiffs failed to properly serve Defendant through an appropriate agent. Plaintiffs argue that they have exhausted every available measure to properly serve Just Think Media and that Just Think Media has engaged in evasive practices resulting in a waste of judicial resources. In support of its argument, Plaintiffs point the Court to the exhibits attached to its response to the motion to quash. On May 2, 2010, Plaintiffs issued a request for service to Just Think Media in compliance with the Hague Convention on Service Abroad. Doc. 22, EX. A-l. Plaintiffs engaged the service of a process server and, on July 6, 2010, Plaintiffs WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 Chamberlain v. Integraclick, Inc., Not Reported in F.Supp.2d (2011) attempted to serve Just Think Media in Edmonton, Alberta; Just Think Media, however, refused to accept service. 1d. On September 29, 2010, attorney J. Martin Hayes of Ackerman Senterfitt, filed a notice of appearance with the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida as counsel on behalf of both defendants, Clickbooth and Just Think Media. Id., Ex. A-3. Subsequent to the representation that attorney Hayes was counsel for both Just Think Media and Clickbooth, Plaintiffs engaged the assistance of another process server and served a copy of the summons and the complaint on Lisa Malwitz, receptionist for Akerman Senterfitt, on October 11, 2010. Id., EX. A-2. Shortly thereafier, on October 28, 2011, Just Think Media removed the case to this Court and included a copy of the summons and the complaint With the notice. See Doc. 1. On November 3, 2010, Just Think Media filed the instant motion to quash service of process. Counsel for Plaintiffs, Benjamin H. Richman, called Karl S. Kronenberger, counsel for Just Think Media, informed him of the repeated attempts to serve the company, and requested that Kronenberger accept service to put the issue to rest. Doc. 22, EX. A, fl 576. Kronenberger refused to accept service. Plaintiffs claim that Just Think Media's non-compliance thus far has been evasive and requests the Court to order Just Think Media to accept service. Standard *2 Rule 12(b)(5) allows a defendant to move for dismissal on the grounds of insufficient service of process. Fed R. CiV. P. 12(b)(5). Once the sufficiency of service is brought into question, the plaintiff has the burden of proving proper service of process. Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F.Supp.2d 1273, 1277 (S.D.F1a.1999). If the plaintiff can establish that service was proper, the burden shifts to the defendant to “bring strong and convincing evidence of insufficient process.” Hollander v. Wolf No. 09-80587-CIV, 2009 WL 3336012, at *3 (S.D.F1a.2009); see O’Brien v. RJ. O’Brien Associates, Ina, 998 F.2d 1394, 1398 (7th Cir.1993). “The Court may look to affidavits, depositions, and oral testimony to resolve disputed questions of fact.” Hollander, 2009 WL 3336012, at *3 (citations omitted). There are two ways in which a foreign corporation may be served that are applicable to the instant case: (1) extra-territorial service in compliance with international agreements and (2) service within the United States made upon an agent of the foreign corporation or in compliance with state law governing service upon a foreign corporation Service Pursuant t0 the Hague Convention A foreign corporation is subject to service outside of the United States by “any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad ofJudicial and Extrajudicial Documents.” Fed. R. Civ. P. 4(f) (1); see also Fed. R. Civ. P. 4(h)(2). The Hague Convention's provisions authorize service on a defendant in a foreign jurisdiction by providing a set of guidelines that contracting states must follow. See Hague Convention on Service Abroad of Judicial and Extrajudicial Documents, Nov. 15, 1965, 20 U.S.T. 361 [hereinafter Hague Convention on Service Abroad]. The main purpose of the Hague Convention on Service Abroad is “to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.” VolkswagenwerkAktiengesellschaft v. Schlunk, 286 U.S. 694, 698 (1988). By agreeing to be parties to the Convention, contracting states must work together to effectuate the goals embodied therein by following the procedures for service set out in the Convention. The first step that each state must take in compliance with the Convention, pursuant to Article 2, is to designate a central authority to receive requests for service of documents from other countries that are parties to the convention. Hague Convention on Service Abroad. Then, the central authority must serve the documents by a method prescribed by internal law or by a particular method requested by the applicant so long as it is compatible with the law of the receiving state. Id. at art. 5. Furthermore, the central authority must then complete a certificate of service which states that the document has been served; if it has not been served, the certificate must state the reasons which have prevented service. Id. at art. 6. *3 In the instant case, Plaintiffs have demonstrated an attempt to comply with the Hague Convention's service requirements, and their attempt was thwartedwhen Defendant would not accept service. See Doc. 22, Ex. A71. Plaintiffs contacted the designated Canadian Central Authority on May 2, 2010 to request service of the summons and the complaint on Defendant in Canada. 1d. The Canadian Central Authority verified the request and attempted to serve Defendant on July WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 Chamberlain v. Integraclick, lnc., Not Reported in F.Supp.2d (2011) 6, 2010 in accordance with the provisions of Article 5 sub- paragraph (a) of the Convention; however, Defendant refused to accept service from the process server. Id. As Plaintiffs point out, Defendant should not be permitted to “demand that Plaintiffs serve process under the Hague Convention, refilse to accept service when they do, and then cry foul.” Doc. 22, p. 7. While the Hague Convention stands as a method to effect service between foreign states, its main purpose is to act as a safeguard for extra-territorial defendants by requiring that defendants be provided adequate notice of their need to defend in foreign courts. Where it is evident that the Plaintiffs have tried to comply with the Hague Convention on Service Abroad and that Defendant has notice of suit and is taking active steps to evade service in hopes of making it more difficult for Plaintiffs to effectively serve them, the underlying purpose of the Hague Convention's service procedures are frustrated. Service Upon an Agent Federal Rule 0f Civil Procedure 4(h) provides two ways in which a foreign corporation is subject t0 service in a judicial district of the United States. First, service may be effected by following the state law regarding service of a foreign corporation in the jurisdiction where the district court is located or where service has been made, Fed. R. CiV. P. 4(e) (1), (h)(1)(A). In the instant case, Plaintiffs are attempting to effect service on Defendant pursuant to section 48.081(2) of the Florida Statutes. According to section 48.081(2), a plaintiff may effect service on a foreign corporation by serving “any agent transacting business for [the foreign corporation] in this state.” The second way in which a foreign corporation is subject to service in a judicial district of the United States is by delivering a copy of the summons and the complaint to an officer or agent of the corporation, see Fed. R. Civ. P. 4(h)(1)(B). To determine whether Plaintiffs have properly served Defendant under Rule 4(h) in either of the two manners outlined above, it is necessary for this Court to determine first Whether Clickbooth or, alternatively, Akerman Senterfitt was an agent 0f Just Think Media. To establish an agency relationship under Florida law, the plaintiff must establish “(1) acknowledgment by the principal that the agent will act for it, (2) the agent's acceptance of the undertaking, and (3) control by the principal over the actions of the agent.” Gregory v. EBF & Assoc, L.P., 595 F.Supp.2d 1334, 1340 (S.D.Fla.2009); State v. Am. Tobacco C0., 707 So.2d 851, 854 (Fla. 4th DCA 1998). The most important element in the agency test is the amount of control that the foreign corporation has over the purported agent. See State v. Am. Tobacco C0., 707 Sold at 854-855. “Only where there is a showing by plaintiff that the parent corporation exercised such a degree of control over its subsidiary that the activities of the subsidiary were in fact the activities of the parent within the state is substituted service of process permitted.” Volkswagenwerk Atkiengelselischaft v. MCCurdy, 340 So.2d 544, 546 (Fla. 1st DCA 1976). *4 In the instant case, Plaintiffs attempted to serve Defendant by delivering a copy of the summons and the complaint to the secretary at Ackerman Senterfitt, the law firm representing codefendant Clickbooth. It is evident that, by delivering the paperwork to Ackerman Senterfitt, Plaintiffs attempted to serve Defendant through its agent in Florida. This Court does not agree with Plaintiffs that Clickbooth was an agent 0f Defendant because it is not evident that the level of control that Defendant had over Clickbooth was sufficient to give rise to an agency relationship. Despite the fact that Clickbooth may not satisfy the necessary elements to be Defendant's agent, Plaintiffs attempt to serve Defendant by delivering a copy of the summons and the complaint at Ackerman Senterfitt was still sufficient to serve Defendant. As is evident from the notice of appearance that is attached to Plaintiffs' response, Doc. 22, Ex. A-3, an attorney at Ackerman Senterfitt, J. Martin Hayes, represented to the Circuit Court in Leon County, Florida that he was counsel for Defendant. See Doc. 22, Ex. A. It is well settled that, “[g]enerally, an attorney serves as agent for his client; the attorney's acts are the acts ofthe principal, the client.” Andrew H. Boros, PA, v. Arnold P. Cartel: MD, P .A., 537 So.2d 1134, 1135 (3d DCA 1989) (citations omitted). Therefore, Plaintiffs were justified in their belief that service upon Defendant through serving a party that held itself out to be an agent of Defendant to the Circuit Court in Levy County was welI-founded. This Court finds that delivering a copy of the summons and the complaint to Ackerman Senterfitt, coupled with the attempted direct service of Defendant in compliance with the Hague Convention, is sufficient to withstand Defendant's motion to quash service 0f process. Defendant does not set forth a strong enough counter-argument to establish that Plaintiffs service was insufficient. Where it is evident that Plaintiffs have tried to comply with every available means to provide Defendant with notice, that Defendant does have actual notice of suit, and that Defendant has been WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 Chamberlain v. Integraclick, Inc., Not Reported in F.Supp.2d (2011) evading service, it seems futile to require Plaintiffs to expend countless additional resources in order to effect service upon Defendants. DONE and ORDERED. . . . All Citations Accordmgly, 1t ls Not Reported in F.Supp.2d, 2011 WL 1456878 ORDERED and ADJUDGED that Defendant's motion to quash service of process is DENIED. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 EXHIBIT 6 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 108 S.Ct. 2104 Supreme Court of the United States VOLKSWAGENWERK AKTIENGESELLSCHAFI‘, Petitioner V. Herwig J. SCHLUNK, administrator of Estates of Franz J. Schlunk and Sylvia Schlunk, Deceased. No. 86-1052. | Argued March 21, 1988. | Decided June 15, 1988. Synopsis Following service of process upon West German manufacturer's wholly owned American subsidiary, manufacturer moved to quash service. The Circuit Court, Cook County, Myron T. Gomberg, J., denied motion, and manufacturer appealed. The Appellate Court, Scariano, J., 145 Ill.App.3d 594, 105 Ill.Dec. 39, 503 N.E.2d 1045,affirmed. Upon grant of cettiorari, the Supreme Court, Justice O'Connor, held that Hague Service Convention does not apply when process is served on foreign corporation by serving its domestic subsidiary which, under state law, is foreign corporation's involuntary agent for service. Affirmed. Justice Brennan filed opinion concurring in judgment in which Justice Marshall and Justice Blackmun joined. M2105 *694 Syllabus" After his parents were killed in an automobile accident, respondent filed a wrongful death action in an Illinois court, alleging that defects in the automobile designed and sold by Volkswagen of America, Inc. (VWoA), in which the parents were driving, caused or contributed to their deaths. When VWoA's answer denied that it had designed 0r assembled the vehicle, respondent amended his complaint to add as a defendant petitioner here (VWAG), a German corporation which is the sole owner of VWoA. Respondent attempted to serve the amended complaint on VWAG by serving VWoA as VWAG's agent. Filing a special and limited appearance, VWAG moved to quash the service on the grounds that it could be served only in accordance with the Hague Service Convention, and that respondent had not complied With the Convention's requirements. The court denied the motion, reasoning that VWoA and VWAG are so closely related that VWoA is VWAG's agent for service of process as a matter of law, notwithstanding VWAG's failure or refusal to appoint VWoA formally as an agent. The court concluded that, because service was accomplished in this country, the Convention did not apply. The Appellate Court of Illinois affirmed, ruling that the Illinois long-arm statute authorized substituted service on VWoA, and that such service did not violate the Convention. Held: The Hague Service Convention does not apply when process is served on a foreign corporation by serving its domestic subsidiary which, under state law, is the foreign corporation's involuntary agent for service. Pp. 2107721 12. (a) The service of process in this case is not covered by Article 1 of the Convention, which provides that the Convention “shall apply where there is occasion to transmit a judicial document for service abroad.” “Service” means a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action. Since the Convention does not itself prescribe a standard for determining the legal sufficiency of the delivery, the internal law of the forum state controls. Thus, where, as here, the forum state's law does not define the applicable method of serving process as requiring the transmittal of documents *695 abroad, the Convention does not apply. This interpretation is consistent with the negotiating history and the general purposes 0f the Convention. One purpose of the Convention is t0 provide means to facilitate service of process abroad. The Convention implements this purpose by requiring each state “2106 to establish a central authority to assist in the service of process, and nothing in the present decision interferes with that requirement. Another purpose of the Convention is to assure foreign defendants adequate notice. The present decision does not necessarily advance this purpose, because it makes application of the Convention depend on the forum's internal law; however, it is unlikely that any country will draft its internal laws deliberately so as to circumvent the Convention in cases in which it would be appropriate to transmit judicial documents for service abroad. Furthermore, this decision does not prevent voluntary compliance with the Convention even when the forum's WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 internal law does not so require, and such compliance can be advantageous. Pp. 2107-21 1 1. (b) VWAG's contention that service upon it was not complete until VWoA transmitted the complaint to it in Germany, and that this transmission “for service abroad” rendered the Convention applicable to the case under Article 1, is without merit. Where, as here, service on a domestic agent is valid and complete under both state law and the Due Process Clause without an official transmission of documents abroad, the inquiry ends and the Convention has no further implications. Pp. 2111-2112. 145 Ill.App.3d 594, 105 Ill.Dec. 39, 503 N.E.2d 1045, affirmed. O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL and BLACKMUN, JJ.,joined,p0st, p. 2112. Attorneys and Law Firms HerbertRubin argued the cause for petitioner. With him on the briefs were Stephen M. Shapiro, Kenneth S. Geller, Michael Hoenig, and James K. Toohey. Jack Samuel Ring argued the cause for respondent. With him on the briefwas Judith E. Fors. Jeflrey P. Minear argued the cause for the United States as amicus curiae urging affirmance. Wtih him on the briefwere Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Merrill, Deputy Assistant *696 Attorney General Spears, David Epstein, and Abraham D. S0faer.* * Peter Heidenberger filed a brief for the Federal Republic of Germany as amicus curiae urging reversal. Leonard M. Ring filed a brief for the Trial Lawyers of America as amicus curiae urging affirmance. Briefs ofamici curiae were filed for the Illinois Trial Lawyers Association by William J. Harte; and for the Motor Vehicle Manufacturers Association of the United States, Inc., by Jay M Smyselc William H. Crabtree, and Edward P. Good. Opinion Justice O'CONNOR delivered the opinion of the Court. This case involves an attempt to serve process on a foreign corporation by serving its domestic subsidiary which, under state law, is the foreign corporation's involuntary agent for service of process. We must decide whether such service is compatible with the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), [1969] 20 U.S.T. 361, T.I.A.S. No. 6638. I The parents of respondent Herwig Schlunk were killed in an automobile accident in 1983. Schlunk filed a wrongful death action on their behalf in the Circuit Court of Cook County, Illinois. Schlunk alleged that Volkswagen of America, Inc. (VWoA), had designed and sold the automobile that his parents were driving, and that defects in the automobile caused or contributed to their deaths. Schlunk also alleged that the driver of the other automobile involved in the collision was negligent; Schlunk has since obtained a default judgment against that person, who is no longer a party to this lawsuit. Schlunk successfully served his complaint 0nVWoA, and VWoA filed an answer denying that it had designed or assembled the automobile in question. Schlunk then amended the complaint to add as a defendant Volkswagen Aktiengesellschaft (VWAG), which is the petitioner *697 here. VWAG, a corporation established under the laws of the Federal Republic of Germany, has its place of business in that country. VWoA is a wholly owned subsidiary ofVWAG. Schlunk attempted to serve his amended complaint onVWAG by serving VWoA as VWAG's agent. VWAG filed a special and limited appearance for the purpose of quashing service. VWAG asserted that it could be served only in accordance with the Hague Service **2107 Convention, and that Schlunk had not complied with the Convention's requirements. The Circuit Court denied VWAG's motion. It first observed that VWoA is registered to do business in Illinois and has a registered agent for receipt of process in Illinois. The court then reasoned that VWoA and VWAG are so closely related that VWoA is VWAG's agent for service of process as a matter of law, notwithstanding VWAG's failure or refusal to appoint VWoA formally as an agent. The court relied on the facts that VWoA is a WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 wholly owned subsidiary of VWAG, that a majority of the members of the board of directors of VWoA are members of the board of VWAG, and that VWoA is by contract the exclusive importer and distributor of VWAG products sold in the United States. The court concluded that, because service was accomplished Within the United States, the Hague Service Convention did not apply. The Circuit Court certified two questions to the Appellate Court of Illinois. For reasons similar to those given by the Circuit Court, the Appellate Court determined that VWoA is VWAG's agent for service of process under Illinois law, and that the service of process in this case did not violate the Hague Service Convention. 145 Ill.App.3d 594, 105 Ill.Dec. 39, 503 N.E.2d 1045 (1986). After the Supreme Court of Illinois denied VWAG leave to appeal, 112 Ill.2d 595 (1986), VWAG petitioned this Court for a writ of certiorari to review the Appellate Court's interpretation of the Hague Service Convention. We granted certiorari to address this issue, 484 U.S. 895, 108 S.Ct. 226, 98 L.Ed.2d 185 (1987), which has given rise to disagreement among the lower *698 courts. Compare Exparte VolkswagenwerkA.G., 443 So.2d 880, 881 (Ala.1983) (holding that the Hague Service Convention does not apply if a foreign national is served properly through its agent in this country); Zisman v. Siege}: 106 F.R.D. 194, 199- 200 (ND 111.1985) (same); Lamb v. VolkswagenwerkA.G., 104 F.R.D. 95, 97 (SD Fla.1985) (same); McHugh v. International Components Corp, 118 Misc.2d 489, 491-492, 461 N.Y.S.2d 166, 167-168 (1983) (same), with Cippolla v. Picard Porsche Audi, Inc., 496 A.2d 130, 131-132 (R.I.l985) (holding that the Hague Service Convention is the exclusive means of serving a foreign corporation); Wingert v. Volkswagenwerk A.G., CiV.Action Nos. 3:86-2994-16 and 3:86-2995-16 (S.C. May 19, 1987), slip op., at 3-4 (same). II The Hague Service Convention is a multilateral treaty that was formulated in 1964 by the Tenth Session of the Hague Conference of Private International Law. The Convention revised parts of the Hague Conventions on Civil Procedure of 1905 and 1954. The revision was intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad. 3 1964 Conférence de 1a Haye de Droit International Prive’, Actes et Documents de 1a Dixiéme Session (Notification) 75-77, 363 (1965) (3 Actes et Documents); 1 B. Ristau, International Judicial Assistance (Civil and Commercial) §L 1 (1984 and 1 Supp.1986) (1 Ristau). Representatives of all 23 countries that were members of the Conference approved the Convention Without reservation. Thirty-two countries, including the United States and the Federal Republic of Germany, have ratified or acceded to the Convention. Brief for United States as Amicus Curiae 2, n. 2 (filed Sep. 12, 1987). The primary innovation of the Convention is that it requires each state to establish a central authority to receive requests for service of documents from other countries. *699 20 U.S.T. 362, T.I.A.S. 6638, Art. 2. Once a central authority receives a request in the proper form, it must serve the documents by a method prescribed by the internal law of the receiving state or by a method designated by the requester and compatible With that law. Art. 5. The **2108 central authority must then provide a certificate of service that conforms to a specified model. Art. 6. A state also may consent to methods of service within its boundaries other than a request to its central authority. Arts. 8-1 1 , 19. The remaining provisions of the Convention that are relevant here limit the circumstances in which a default judgment may be entered against a defendant who had to be served abroad and did not appear, and provide some means for relief from such a judgment. Arts. 15, 16. Article 1 defines the scope 0f the Convention, which is the subject of controversy in this case. It says: “The present Convention shall apply in all cases, in civil 0r commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” 20 U.S.T., at 362. The equally authentic French version says, “La présente Convention est applicable, en matiére civile ou commerciale, dans tous les cas 01‘1 un acte judiciaire ou extrajudiciaire doit étre transmis é l'étranger pour y étre signifié ou notifié.” Ibid. This language is mandatory, as we acknowledged last Term in Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522, 534, n. 15, 107 S.Ct. 2542, 2550, n. 15, 96 L.Ed.2d 461 (1987). By Virtue of the Supremacy Clause, U.S. C0nst., Art. VI, the Convention pre- empts inconsistent methods of service prescribed by state law in all cases to which it applies. Schlunk does not purport to have served his complaint on VWAG in accordance with the Convention. Therefore, if service of process in this case falls within Article 1 of the Convention, the trial court should have granted VWAG's motion to quash. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 When interpreting a treaty, we “begin ‘with the text of the treaty and the context in which the written words are used.’ ” *700 iSociété Nationale, supra, at 534, 107 S.Ct., at 2550 (quoting Air France v. Saks, supra, 470 U.S. 392, 397, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985)). Other general rules of construction may be brought to bear on difficult or ambiguous passages. “ ‘Treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.’ ”AirFrance v. Saks, supra, at 396, 105 S.Ct., at 1341 (quoting Choctaw Nation oflndians v. United States, 3 1 8 U.S. 423, 43 1-432, 63 S.Ct. 672, 678, 87 L.Ed. 877 (1943)). The Convention does not specify the circumstances in Which there is “occasion to transmit” a complaint “for service abroad.” But at least the term “service ofprocess” has a well- established technical meaning. Service of process refers t0 a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action. 1 Ristau § 4-5(2), p. 123 (interpreting the Convention); Black's Law Dictionary 1227 (5th ed. 1979); see 4 C. Wright & A. Miller, Federal Practice and Procedure § 1063, p. 225 (2d ed. 1987). The legal sufficiency of a formal delivery of documents must be measured against some standard. The Convention does not prescribe a standard, so we almost necessarily must refer to the internal law of the forum state. If the internal law of the forum state defines the applicable method 0f serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies. The negotiating history supports our view that Article 1 refers to service of process in the technical sense. The committee that prepared the preliminary draft deliberately used a form of the term “notification” (formal notice), instead of the more neutral term “remise” (delivery), when it drafted Article 1. 3 Actes et Documents, at 78-79. Then, in the course of the debates, the negotiators made the language even more exact. The preliminary draft of Article 1 said that the present Convention shall apply in all cases in which there are grounds t0 transmit 0r t0 give formal notice 0f *701 a judicial or extrajudicial document in a civil or commercial matter **2109 to a person staying abroad. 1d., at 65 (“La présente Convention est applicable dans tous les cas 01‘1 i1 y a lieu de lransmettre ou de notifier un acte judiciaire ou extrajudiciaire en matiére civile ou commerciale la une personne se trouvant é l'étranger”) (emphasis added). To be more precise, the delegates decided to add a form of the juridical term “signification” (service), which has a narrower meaning than “notification” in some countries, such as France, and the identical meaning in others, such as the United States. Id., at 152-153, 155, 159, 366. The delegates also criticized the language of the preliminary draft because it suggested that the Convention could apply to transmissions abroad that do not culminate in service. Id., at 165-167. The final text of Article 1, supra, eliminates this possibility and applies only to documents transmitted for service abroad. The final report (Rapport Explicatif) confirms that the Convention does not use more general terms, such as delivery or transmission, to define its scope because it applies only when there is both transmission of a document from the requesting state to the receiving state, and service upon the person for Whom it is intended. Id., at 366. The negotiating history of the Convention also indicates that whether there is service abroad must be determined by reference to the law of the forum state. The preliminary drafi said that the Convention would apply “where there are grounds” to transmit a judicial document to a person staying abroad. The committee that prepared the preliminary draft realized that this implied that the forum's internal law would govern whether service implicated the Convention. Id., at 80- 8 1. The reporter expressed regret about this solution because it would decrease the obligatory force of the Convention. Id., at 8 1. Nevertheless, the delegates did not change the meaning ofArticle 1 in this respect. The Yugoslavian delegate offered a proposal to amend Article 1 to make explicit that service abroad is defined according *702 to the law of the state that is requesting service of process. 1d., at 167. The delegate from the Netherlands supported him. Ibid. The German delegate approved of the proposal in principle, although he thought it would require a corresponding reference to the significance of the law of the state receiving the service 0f process, and that this full explanation would be too complicated. 1d,, at 168. The President opined that there was a choice to be made between the phrase used by the preliminary draf , “where grounds exist,” and the Yugoslavian proposal to modify it with the phrase, “according to the law of the requesting state.” Ibid. This prompted the Yugoslavian delegate to declare that the difference was immaterial, because the phrase “where grounds exist” necessarily refers to the law of the forum. Ibid. The French delegate added that, in his View, the law of the forum in turn is equivalent to the law of the requesting state. Id., at 169. At that point, the President recommended entrusting the problem to the drafting committee. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 The drafiing committee then composed the version ofArticle 1 that ultimately was adopted, which says that the Convention applies “where there is occasion” to transmit a judicial document for service abroad. Id., at 211. After this revision, the reporter again explained that one must leave to the requesting state the task of defining when a document must be served abroad; that this solution was a consequence of the unavailability of an objective test; and that while it decreases the obligatory force of the Convention, it does provide clarity. Id., at 254. The inference we draw from this history is that the Yugoslavian proposal was rejected because it was superfluous, not because it was inaccurate, and that “service abroad” has the same meaning in the final version of the Convention as it had in the preliminary draft. VWAG protests that it is inconsistent With the purpose of the Convention to interpret it as applying only When the internal law of the forum requires service “2110 abroad. One 0f the two stated objectives of the Convention is “to create *703 appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.” 20 U.S.T., at 362. The Convention cannot assure adequate notice, VWAG argues, if the forum's internal law determines whether it applies. VWAG warns that countries could circumvent the Convention by defining methods of service of process that do not require transmission of documents abroad. Indeed, VWAG contends that one such method of service already exists and that it troubled the Conference: notification au parquet. Nonfication au parquet permits service of process on a foreign defendant by the deposit of documents with a designated local official. Although the official generally is supposed t0 transmit the documents abroad to the defendant, the statute of limitations begins to run from the time that the official receives the documents, and there allegedly is no sanction for failure to transmit them. 3 Actes et Documents, at 167-169; S.Exec.Rep. No. 6, 90th Cong., lst Sess., 12 (1967) (statement 0f Philip Amram, member of the United States delegation); 1 Ristau § 4733, p. 172. At the time of the 10th Conference, France, the Netherlands, Greece, Belgium, and Italy utilized some type ofnotzfication au parquet. 3 Actes et Documents, at 7S. There is no question but that the Conference wanted to eliminate notification au parquet. Id., at 75-77. It included in the Convention two provisions that address the problem. Article 15 says that a judgnent may not be entered unless a foreign defendant received adequate and timely notice of the lawsuit. Article 16 provides means whereby a defendant who did not receive such notice may seek relief from a judgment that has become final. 20 U.S.T., at 364-365. Like Article 1, however, Articles 15 and 16 apply only when documents must be transmitted abroad for the pulpose of service. 3 Actes et Documents, at 168-169. VWAG argues that, if this determination is made *704 according to the internal law 0f the forum state, the Convention Will fail to eliminate variants of notification au parquet that do not expressly require transmittal of documents to foreign defendants. Yet such methods of service of process are the least likely to provide a defendant with actual notice. The parties make conflicting representations about whether foreign laws authorizing notification au parquet command the transmittal of documents for service abroad within the meaning of the Convention. The final report is itself somewhat equivocal. It says that, although the strict language of Article 1 might raise a question as to whether the Convention regulates notification au parquet, the understanding of the drafting Commission, based on the debates, is that the Convention would apply. 1d., at 367. Although this statement might affect our decision as to whether the Convention applies to notification au parquet, an issue we do not resolve today, there is no comparable evidence in the negotiating history that the Convention was meant to apply to substituted service on a subsidiary like VWoA, which clearly does not require service abroad under the forum's internal law. Hence neither the language of the Convention nor the negotiating history contradicts our interpretation of the Convention, according to which the internal law of the forum is presumed to determine whether there is occasion for service abroad. Nor are we persuaded that the general purposes of the Convention require a different conclusion. One important objective of the Convention is to provide means to facilitate service of process abroad. Thus the first stated purpose of the Convention is “t0 create” appropriate means for service abroad, and the second stated purpose is “to improve the organization of mutual judicial assistance for that purpose by simplifying and expediting the procedure.” 20 U.S.T., at 362. By requiring each state to establish a central authority to assist in the “2111 service of process, the Convention implements this enabling function. Nothing in our decision today interferes With this requirement. *705 V WAG correctly maintains that the Convention also aims to ensure that there will be adequate notice in cases WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 5 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 in which there is occasion to serve process abroad. Thus compliance with the Convention is mandatory in all cases to which it applies, see supra, at 2109, and Articles 15 and 16 provide an indirect sanction against those Who ignore it, see 3 Actes et Documents, at 92, 363. Our interpretation of the Convention does not necessarily advance this panicular objective, inasmuch as it makes recourse to the Convention's means of service dependent on the forum's internal law. But we do not think that this country, or any other country, will draft its internal laws deliberately so as to circumvent the Convention in cases in which it would be appropriate to transmit judicial documents for service abroad. For example, there has been no question in this country of excepting foreign nationals from the protection of our Due Process Clause. Under that Clause, foreign nationals are assured of either personal service, which typically will require service abroad and trigger the Convention, or substituted service that provides “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust C0., 339 U.S. 306, 314, 7O S.Ct. 652, 657, 94 L.Ed. 865 (1950).* *706 Furthermore, nothing that we say today prevents compliance with the Convention even when the internal law of the forum does not so require. The Convention provides simple and certain means by which to serve process on a foreign national. Those who eschew its procedures risk discovering that the forum's internal law required transmittal of documents for service abroad, and that the Convention therefore provided the exclusive means of valid service. In addition, patties that comply with the Convention ultimately may find it easier to enforce their judgments abroad. See Westin, Enforcing Foreign Commercial Judgments and Arbitral Awards in the United States, West Germany, and England, Law & Policy Int'l Bus. 325, 340-341 (1987). For these reasons, we anticipate that parties may resort to the Convention voluntarily, even in cases that fall outside the scope of its mandatory application. III In this case, the Illinois long-arm statute authorized Schlunk to serve VWAG by substituted service on VWoA, without sending documents to Germany. See Ill.ReV.Stat., ch. 110, 11 2-209(a)(1) (1985). “2112 VWAG has not petitioned for review of the Illinois Appellate Court's holding that service was proper as a matter of Illinois law. VWAG contends, however, that service on VWAG was not complete until VWoA transmitted the complaint to VWAG in Germany. According to VWAG, *707 this transmission constituted service abroad under the Hague Service Convention. VWAG explains that, as a practical matter, VWoA was certain to transmit the complaint to Germany to notify VWAG of the litigation. Indeed, as a legal matter, the Due Process Clause requires every method of service to provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central HanoverBank& Trust C0., supra, at 3 14, 70 S.Ct., at 657. VWAG argues that, because of this notice requirement, every case involving service on a foreign national will present an “occasion to transmit a judicial document for service abroad” within the meaning of Article 1. Tr. of Oral Arg. 8. VWAG emphasizes that in this case, the Appellate Court upheld service only after determining that “the relationship between VWAG and VWoA is so close that it is certain that VWAG ‘was fully apprised of the pendency of the action’ by delivery of the summons to VWoA.” 145 Ill.App.3d, at 606, 105 Ill.Dec., at 47, 503 N.E.2d, at 1053 (quoting Maunder v. DeHavillandAircraft ofCanada, Ltd, 102 Ill.2d 342, 353, 80 Ill.Dec. 765, 771, 466 N.E.2d 217, 223, cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). We reject this argument. Where service on a domestic agent is valid and complete under both state law and the Due Process Clause, our inquiry ends and the Convention has no further implications. Whatever internal, private communications take place between the agent and a foreign principal are beyond the concerns of this case. The only transmittal to which the Convention applies is a transmittal abroad that is required as a necessary part 0f service. And, contrary to VWAG'S assertion, the Due Process Clause does not require an official transmittal of documents abroad every time there is service on a foreign national. Applying this analysis, we conclude that this case does not present an occasion to transmit a judicial document for service abroad within the meaning *708 of Article 1. Therefore the Hague Service Convention does not apply, and service was proper. The judgment of the Appellate Court is Aflirmed. Justice BRENNAN, With whom Justice MARSHALL and Justice BLACKMUN join, concurring in the judgment. We acknowledged last Term, and the Court reiterates today, ante, at 2107-2108, that the terms of the Convention on WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 6 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, [1969] 20 U.S.T. 361, T.I.A.S. No. 6638, are “mandatory,” not “optional” with respect to any transmission that Article 1 covers. Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522, 534, and n. 15, 107 S.Ct. 2542, 2550, and n. 15, 96 L.Ed.2d 461 (1987). Even so, the Court holds, and I agree, that a litigant may, consistent with the Convention, serve process on a foreign corporation by serving its wholly owned domestic subsidiary, because such process is not “service abroad” within the meaning of Article 1. The Court reaches that conclusion, however, by depriving the Convention of any mandatory effect, for in the Court's View the “forum's internal law” defines conclusively whether a panicular process is “service abroad,” which is covered by the Convention, or domestic service, Which is not. Ante, at 2110. I do not join the Court's opinion because I find it implausible that the Convention's framers intended to leave each contracting nation, and each of the 50 States within our Nation, free to decide for itself under what circumstances, if any, the Convention would control. Rather, in my View, the **2113 words “service abroad,” read in light of the negotiating history, embody a substantive standard that limits a forum's latitude to deem service complete domestically. The first of two objectives enumerated in the Convention's preamble is “to create appropriate means to ensure that judicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time....” 20 U.S.T., at 362. See also ante, at 2109. Until the Convention *709 was implemented, the contracting nations followed widely divergent practices for serving judicial documents across international borders, some of which did not ensure any notice, much less timely notice, and therefore often produced unfair default judgments. See generally International Co- Operation in Litigation: Europe (H. Smit ed. 1965); 3 1965 Conférence de la Haye de Droit International Privé, Actes et Documents de la Dixiéme Session (Notification) 11- 12 (1965) (hereinafter 3 Actes et Documents). Particularly controversial was a procedure, common among civil-law countries, called “notification au parquet,” which permitted delivery ofprocess to a local official who was then ordinarily supposed to transmit the document abroad through diplomatic or other channels. See S.Exec.Rep. No. 6, 90th Cong, lst Sess., 11-12, 14-16 (1967) (S.Exec.Rep. No. 6); S.Doc. C, 90th Cong., lst Sess., 5-6, 21 (1967) (S.ExecDoc. C). Typically, service was deemed complete upon delivery of the document to the official Whether 0r not the official succeeded in transmitting it to the defendant and whether or not the defendant otherwise received notice of the pending lawsuit.1 *710 The United States delegation to the Convention objected to notification au parquet as inconsistent with “the requirements of ‘due process of law” under the Federal Constitution.” 3 Actes et Documents 128 (citations omitted). The head of the delegation has derided its “ ‘[i]njustice, extravagance, [and] absurdity....’ ” Amram 651 (citation omitted). In its classic formulation, he observed, notification au parquet “ ‘totally sacrificed all rights of the defense in favor of the plaintiff.’ ” Id., at 652, n. 9 (citation omitted). “éThe Convention's official reporter noted similar spirited criticisms ofthe system’... which we wish to see eliminated.” 3 Actes et Documents 76 (translated). In response to this and other concerns, the Convention prescribes the exclusive means for service of process emanating from one contracting nation and culminating in another. As the Court observes, the Convention applies only when the document is to be “transmit[ted] for service abroad”; it covers not every transmission ofjudicial documents abroad, but only those transmissions abroad that constitute formal “service.” See ante, at 2108. It is common ground that the Convention governs when the procedure prescribed by the internal law of the forum nation or state provides that service is not complete until the document is transmitted abroad. That is not to say, however, as **2114 does the Court, that the forum nation may designate any type of service “domestic” and thereby avoid application of the Convention. Admittedly, as the Court points out, ibid., the Convention's language does not prescribe a precise standard to distinguish between “domestic” service and “service abroad.” But the Court's solution leaves contracting nations free to ignore its terms entirely, converting its command into exhortation. Under the Court's analysis, for example, a forum nation could prescribe direct mail service to any foreigner and deem service effective upon deposit in the mailbox, or could arbitrarily designate a domestic agent for any foreign defendant and deem service complete upon receipt domestically by *711 the agent even though there is little likelihood that service would ever reach the defendant. In fact, so far as I can tell, the Court's interpretation permits any contracting nation to revive notification au parquet so long as the nation's internal law deems service complete domestically, but cf. ante, at 2110, even though, as the Court concedes, “such methods of service are the least likely to provide a WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 7 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 defendant with actual notice,” and even though “[t]here is no question but that the Conference wanted to eliminate notification au parquet,” ante, at 21 10 (citation omitted). The Court adheres to this interpretation, which (in the Court's words) “does not necessarily advance” the primary purpose that the Convention itself announces, ante, at 2111, notwithstanding its duty to read the Convention “with a View to effecting the objects and purposes 0f the States thereby contracting.” Rocca v. Thompson, 223 U.S. 317, 331-332, 32 S.Ct. 207, 210, 56 L.Ed. 453 (1912). See Factor v. Laubenheimer, 290 U.S. 276, 293-294, 54 S.Ct. 191, 195- 196, 78 L.Ed. 315 (1933); Wright v. Henkel, 190 U.S. 40, 57, 23 S.Ct. 781, 784-85, 47 L.Ed. 948 (1903). Even assuming any quantum of evidence from the negotiating history would suffice t0 support an interpretation so fundamentally at odds with the Convention’s primary purpose, the evidence the Cour: amasses in support of its reading-two interim comments by the reporter on initial drafts of the Convention suggesting that the forum's internal law would dictate whether a particular form of service implicates the Convention-falls far short. See ante, at 2109. In the first place, the reporter's comments were by no means uncontroversial. One participant, for example, directly challenged the “report['s] allusion to the danger that the court hearing the proceeding could decide that there were no grounds for service,” and observed that “[n]ow, the preamble of [the] drafi specifies the objective of the convention, which is to ensure the service of writs to persons in foreign countries in order t0 guarantee that these persons will have knowledge of them.” 3 Actes et Documents 165 (United Kingdom delegate) (translation) (emphasis added). *712 In fact, the delegates considered a version ofAnicle 1 explicitly prescribing that the Convention's scope would be defined “ ‘according to the law of the petitioning state,’ ” id., at 167 (quoting proposal of Yugoslavian delegate) (translation), but rejected the proposal at least in part “because it would allow [domestic] law to determine the cases in which transmission is not obligatory.” Ibid. (Italian delegate) (translation). If the delegates did not resolve their differences upon tabling the proposal, they apparently did by the time the official reporter issued his Rapport Explicatif This final report, which presumably supersedes all interim comments, stresses “the opinion of the Third Commission [that] the Convention was ‘obligatory,’ ” making n0 reference to internal law. 3 Actes et Documents 366 (translation). By way of example, the Rapport acknowledges that a literal reading ofthe Convention might raise doubts as to the Convention's coverage of notification au parquet, yet announces the understanding of the drafiing commission that the Convention would prohibit “2115 such service.2 Thus, reading Article 1 “ ‘in the liberal spirit in which it is intended [,]’ ” to address “ ‘the hardship and injustice, which [the Convention] seeks to id., at 367 (citation omitted), the Rapport interprets 7” relieve, the Convention to impose a substantive standard proscribing notification au parquet Whether the forum nation deems the service “domestic” or “abroad.” That substantive standard is captured in the Rapport’s admonition that “ ‘[a]ll of the transmission channels (prescribed by the convention) must have as a consequence the fact that the act reach the addressee in due time. That is a requirement *713 ofjustice, which assumes its full importance when the act to be transmitted is an act instituting proceedings.’ ” Ibid. (translation) (footnote omitted; emphasis added). The Court belittles the Rapport 's significance by presuming that the reporter assumed, as a matter of the internal law of the various nations then permitting notification au parquet, that such service always required transmission abroad, and therefore would always have been deemed “service abroad.” See ante, at 2109-2 l 10. But the above-cited passage purports to interpret the Convention, not to survey the various forms of notification au parquet then prevalent, and does not so much as hint at the possibility that notification au parquet might continue if the domestic law of a forum nation were to deem it “domestic.” Moreover, the assumption that the Court imputes to the Rapport is inaccurate; as noted above, notification au parquet was typically deemed complete upon delivery to the local official. See supra, at 2114, and n. 1. Any requirement of transmission abroad was no more essential to formal service than is the informal arrangement by which a domestic subsidiary might transmit documents served on it as an agent for its foreign parent. See, e.g., 3 Actes et Documents 169. Thus, if the Court entertains the possibility that the Convention bans notification au parquet under all circumstances, ante, at 2110, it can only be because (notwithstanding the Court's stated analysis) the Convention, read in light of its negotiating history, sets some substantive limit on the forum state's latitude to deem such service “domestic.” Significantly, our own negotiating delegation, whose contemporaneous views are “entitled to great weight,” Société Nationale, 482 U.S., at 536, n. 19, 107 S.Ct., at 2551 n. 19, took seriously the Rapport 's conclusion that the WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 8 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 Convention is more than just precatory. The delegation’s report applauded the Convention as “rnak[ing] substantial changes in the practices of many of the civil law countries, moving their practices in the direction of the U.S. approach to international judicial assistance and our *714 concepts of due process in the service of process.” S.ExecDoc. C, at 20 (emphasis added). The delegation's chief negotiator emphasized that “the convention sets up the minimum standards of international judicial assistance which each country which ratifies the convention must offer to all others who ratify.” S.Exec.Rep. No. 6, at 13 (statement by Philip W. Amram) (emphasis in original). Then-Secretary of State Rusk reiterated the same point} as did the State Department's Deputy Legal Advisor,4 and President “2116 Johnson.5 The repeated references to “due process” were not, of course, intended to suggest that every contracting nation submitted itself to the intricacies of our constitutional jurisprudence. Rather, they were shorthand formulations of the requirement, common to both due process and the Convention, that process directed on a party abroad should be designed so that the documents “reach the addressee in due time,” 3 Actes et Documents 367 (translation). The negotiating history and the uniform interpretation announced by our own negotiators confirm that the Convention limits a forum's ability to deem service “domestic,” thereby avoiding the Convention's terms. Admittedly, the Convention does not precisely define the contours. But that imprecision does not absolve us of our responsibility to apply the Convention mandatorily, any more than imprecision permits us to discard the words “due process of law,” U.S. Const, Amdt. 14, § 1. And however difficult it might be in some circumstances to discern the Convention's precise limits, it is *715 remarkably easy to conclude that the Convention does not prohibit the type of service at issue here. Service on a Wholly owned, closely controlled subsidiary is reasonably calculated to reach the parent “in due time” as the Convention requires. See, e.g., 9 W. Fletcher, Cyclopedia of Law of Private Corporations § 4412, p. 400 (rev.ed. 1985). That is, in fact, what our own Due Process Clause requires, see Mullane v. Central Hanover Bank & Trust C0., 339 U.S. 306, 314-315, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), and since long before the Convention's implementation our law has permitted such service, see, e.g., Perkins v. Benguet Consolidated Mining C0., 342 U.S. 437, 444-445, 72 S.Ct. 413, 417-418, 96 L.Ed. 485 (1952); Latimer v. S/A Industrias Reunidas F.‘ Matarazzo, 175 F.2d 184, 185 (CA2 1949) (L. Hand, J.). This is significant because our own negotiators made clear to the Senate their understanding that the Convention would require no major changes in federal or state service-of-process rules.6 Thus, it is unsurprising that nothing in the negotiating history suggests that the contracting nations were dissatisfied with the practice at issue here, which they were surely aware, much less that they intended to abolish it like they intended to abolish notification au parquet. And since notice served on a wholly owned domestic subsidiary is infinitely more likely to reach the foreign parent's attention than was notice served au parquet (or by any other procedure that the negotiators singled out for criticism) there is no reason to interpret the Convention to bar it. *716 My difference with the Court does not affect the outcome of this case, and, given that any process emanating from our courts must comply with due process, it may have little practical consequence in future cases that come before us. But cf. S.ExecRep. No. 6, at 15 (statement by Philip W. Amram suggesting that Convention may require “a minor change in the practice of some of our States in long-arm and automobile accident cases” where “service on the appropriate official need be accompanied only by a minimum effort to notify the defendant”). Our Constitution does “2117 not, however, bind other nations haling our citizens into their courts. Our citizens rely instead primarily on the forum nation's compliance with the Convention, which the Senate believed would “provide increased protection (due process) for American Citizens who are involved in litigation abroad.” Id., at 3. And while other nations are not bound by the Court's pronouncement that the Convention lacks obligatory force, after today's decision their courts will surely sympathize little with any United States national pleading that a judgment violates the Convention because (notwithstanding any local characterization) service was “abroad.” It is perhaps heartening to “think that [no] countr[y] will draft its internal laws deliberately so as to circumvent the Convention in cases in which it would be appropriate to transmit judicial documents for service abroad,” ante, at 2112, although from the defendant's perspective “circumvention” (which, according to the Court, entails no more than exercising a prerogative not to be bound) is equally painful whether deliberate or not. The fact remains, however, that hadwe been content to rely on foreign notions of fair play and substantial justice, we would have found it unnecessary, in the first place, to participate in a Convention “to ensure that judicial documents to be served abroad [would] be brought to the notice of the addressee in sufficient time,” 20 U.S.T., at 362. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 9 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 All Citations 486 U.S. 694, 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 Footnotes * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. The concurrence believes that our interpretation does not adequately guarantee timely notice, which it denominates the “primary” purpose of the Convention, albeit without authority. Post, at 21 14. The concurrence instead proposes to impute a substantive standard to the words, “service abroad." Post, at 21 12. Evidently, a method of service would not be deemed to be “service abroad” within the meaning of Article 1 unless it provides notice to the recipient “in due time.” Post, at 21 15, 21 16. This due process notion cannot be squared with the plain meaning of the words, “service abroad." The contours of the concurrence's substantive standard are not defined, and we note that it would create some uncertainty even on the facts of this case. If the substantive standard tracks the Due Process Clause of the Fourteenth Amendment, it is not self- evident that substituted service on a subsidiary is sufficient with respect to the parent. In the only cases in which it has considered the question, this Court held that the activities of a subsidiary are not necessarily enough to render a parent subject to a court's jurisdiction, for service of process or otherwise. Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 336-337, 45 S.Ct. 250, 251-252, 69 L.Ed. 634 (1925); Consolidated Textile Corp. v. Gregory, 289 U.S. 85, 88, 53 S.Ct. 529, 530, 77 L.Ed. 1047 (1933); see 18A W. Fletcher, Cyclopedia of Law of Private Corporations § 8773 pp. 250- 254 (rev.ed. 1988). Although the particular relationship between VWAG and VWoA might have made substituted service valid in this case, a question that we do not decide, the factbound character of the necessary inquiry makes us doubt whether the standard suggested by the concurrence would in fact be “remarkably easy" to apply, see post, at 21 16. The head of the United States delegation to the Convention described notification au parquet as follows: “This is a system which permits the entry ofjudgments in personam by default against a nonresident defendant without requiring adequate notice. There is also no real right to move to open the defaultjudgment or to appeal, because the time to move to open judgment or to appeal wi|| generally have expired before the defendant finds out about the judgment. “Under this system of service, the process-server simply delivers a copy of the writ to a public official's office. The time for answer begins to run immediately. Some effort is supposed to be made through the Foreign Office and through diplomatic channels to give the defendant notice, but failure to do this has no effect on the validity of the service.... “There are no limitations and protections [comparable to due process or personal jurisdiction] under the notification au parquet system. Here jurisdiction lies merely if the plaintiff is a local national; nothing more is needed.” S.ExecRep. No. 6, at 11-12 (statement by Philip W. Amram). See also S.Exec.Doc. C, at 5 (letter of submittal from Secretary of State Rusk); Amram, The Revolutionary Change in Service of Process Abroad in French Civil Procedure, 2 Int'l Law 650, 650-651 (1968) (Amram). 3 Actes et Documents 367 (emphasis in original; footnote omitted): “However, when confronted with the strict letter of the provision, one can always ask the question of knowing whether or not, when a State permits the service or notification of a person in a foreign country to be made [au parquet], the convention is applicable. “THE AUTHENTIC INTERPRETATION OF THE COMMISSION AS IT EMERGES FROM THE DISCUSSIONS, IS IN THE SENSE OF THE APPLICATION OF THE CONVENTION." See S.Exec.Doc. C, at 8 (“[T]he convention requires major changes, in the direction of modern and efficient procedures, in the present practices of many other" nations) (emphasis added). See S.Exec.Rep. No. 6, at 7 (“It is to our great advantage to obtain binding commitments from other governments that they wi|| adhere to [the] principles.” embodied in due process) (statement by Richard D. Kearney) (emphasis added). See S.Exec.Doc. C, at 1 (“[T]he convention makes important changes in the practices of many civil law countries, moving those practices in the direction of our generous system of international judicial assistance and our concept of due process in the service of documents”). In words reiterated by Secretary of State Rusk, the delegation observed that “[i]n its broadest aspects the convention makes no basic changes in U.S. practices." S.Exec.Doc. C, at 20. See also id., at 8 (“The most significant aspect of the convention is the fact that it requires so little change in the present procedures in the United States") (letter of submittal of Secretary of State Rusk). The delegation's head likewise repeatedly observed that the Convention “leaves our common- WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 10 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) 108 S.Ct. 2104, 100 L.Ed.2d 722, 56 USLW 4595, 11 Fed.R.Serv.3d 417 law due-process principles unaffected and unchanged.” S.Exec.Rep. No. 6, at 11. See also id., at 9 (“By our internal law we already give to foreign litigants all that this convention would require us to provide”); id., at 16 (Convention “requires no changes in our law ofjudicial assistance”). End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 11 EXHIBIT 7 Burda Media, Inc. v. Viertel, 417 F.3d 292 (2005) RICO Bus.Disp.Guide 10,914 417 F.3d 292 United States Court 0f Appeals, Second Circuit. BURDA MEDIA, INC. and Burda Holding GmbH & C0. KG, a German Limited Partnership, Plaintiffs- Counter-Defendants-Appellees, V. Christian VIERTEL, Defendant- Cross-Defendant-Appellant, Hot Line Delivery, Inc., Defendant- Cross-Defendant-Counter- Claimant-Cross-Claimant, Fritz G. Blumenberg, Telecommunication Partners Limited, Transvideo, TV Broadcast Center and Agate Realty, Defendants-Cross-Defendants, Salvadora Blumenberg, Defendant- Counter-Claimant-Cross-Defendant, John Lee, Defendant. Docket No. 04-3426-CV. | Argued: April 26, 2005. | Decided: Aug. 5, 2005. Synopsis Background: Plaintiff companies brought action against one company's former president and others, alleging fraud and Racketeer Influenced and Corrupt Organizations Act (RICO) claims. The United States District Court for the Southern District of New York, Sweet, J., 2004 WL 1110419,denied one individual defendant's motion to vacate default judgment entered against him, and that defendant appealed. Holdings: The Court oprpeals, McLaughlin, Circuit Judge, held that: de novo standard of review was applicable; defendant, who was allegedly served in France, bore burden of proof to establish that purported service did not occur, abrogating Donnely v. Copeland Intra Lenses, Inc., 87 F.R.D. 80; evidence supported finding that plaintiffs sent judicial documents to French Ministry of Justice in effort to serve process upon defendant pursuant to Hague Convention; failure of French Ministry of Justice to return to plaintiffs formal certificate detailing how service was made on defendant did not render service invalid; Hague Convention provision requiring plaintiff to make reasonable efforts to obtain certificate was inapplicable; defendant failed to show he did not receive summons; and service of process satisfied due process requirements. Affirmed. See also 98 Fed.Appx. 68. Attorneys and Law Firms *294 Daniel G. Heyman, Scarsdale, NY, for Defendant- Cross-Defendant-Appellant. Rita McCloy Stephanz, Clifford Chance US LLP, New York, N.Y. (Warren L. Feldman and Stephanie Chmiel, on the brief), for Plaintiffs-Counter-Defendants-Appellees. Before: NEWMAN, McLAUGHLIN, and HALL, Circuit Judges. Opinion McLAUGHLIN, Circuit Judge. Christian Viertel appeals from a decision of the United States District Court for the Southern District ofNew York (Sweet, J.) denying his motion t0 vacate the default judgment entered against him. Burda *295 Media, Inc. v. Blumenberg, 2004 WL 1110419 (S.D.N.Y. May 18, 2004). Defendant-cross-defendant-appellant In September 1997 , plaintiffs-counter-defendants-appellees Burda Media Inc. (“Burda Media”) and Burda Media Holding WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 Burda Media, Inc. v. Viertel, 417 F.3d 292 (2005) RICO Bus.Disp.Guide 10,914 GmbH & Co. KG (together with Burda Media, “Burda” or “Burda plaintiffs”) sued Viertel and several other defendants in the Southern District of New York. The Burda plaintiffs sought damages and other reliefbased on a fraudulent scheme conducted against them by Viertel and the other defendants. After a couple of unsuccessful attempts to serve Viertel in New York and then France, where he was eventually found, Burda served Viertel in France pursuant to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Convention”), November 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. Nevertheless, Viertel failed to respond to the complaint and the district court entered a default judgment in April 2000. In October 2003, Viertel moved to vacate the default judgment principally on the ground that service of process was invalid under the Hague Convention. He set forth two arguments relevant here. First, he argued that service was improper because the French authorities did not complete the required Certificate of service. Second, Viertel alleged that he never received the summons. The district court denied Viertel's motion in its entirety. Burda Media, 2004 WL 1110419, at *10. We affirm. We now hold that: (1) service of process in this case complied with the Hague Convention because the police report completed by the French authorities who effected service was an adequate substitute for the formal Certificate; and (2) the district court properly found that Viertel received the summons, his affidavit to the contrary notwithstanding. BACKGROUND On September 24, 1997, Burda commenced a civil RICO and fraud action against Fritz G. Blumenberg, Viertel, and various companies owned or operated by Viertel in the Southern District of New York. Burda alleged that Viertel conspired with Blumenberg, the former president of Burda Media, to defraud Burda through a scheme in which Blumenberg submitted fraudulent invoices to Burda Media for services allegedly but not actually performed by sham companies whose bank accounts Viertel controlled. Viertel, a friend of Blumenberg, allegedly participated in and benefitted from the fraudulent scheme. Burda‘s repeated efforts to serve Viertel form the core of this appeal.1 The first attempt occurred in New York on September 30, 1997, a few days after the complaint was filed. Burda attempted personal service on Viertel and his companies in New York because the companies operated out of offices in New York and Viertel maintained an apartment there as well. This personal service attempt, however, was unsuccessful. Although once based inNew York, Viertel and his companies were ultimately traced to France. In January 1998, Burda unsuccessfully tried to serve Viertel and his companies by international mail. Around this time, the district court granted what would be the first of two motions *296 by Burda for an extension of time to serve Viertel and his companies. After discovering Vlertel's residence in France, Burda resorted to serving Viertel pursuant to the Hague Convention. On July 14, 1998, Burda transmitted several documents to the Ministry of Justice in Paris, France, requesting service upon Viertel and his companies. The package contained executed USM-94 Forms and two copies ofthe summons and complaint in both French and English. The USM-94 Form is a three-page document that conforms to the Hague Convention's standards for submitting service requests to a country's central authority. The first page lists the names and addresses of the applicant, defendant, and foreign receiving authority as well as the documents t0 be served attached t0 the USM-94 Form. The second page of the USM- 94 Form is entitled “Certificate,” and is submitted blank to the foreign agency. The third page of the USM-94 Form contains a summary of the documents to be served. Burda's USM-94 Forms complied with the Hague Convention: the first page listed Burda's counsel as the applicant, the various defendants on each separate form, and the French Ministry 0f Justice as the receiving authority, as well as the summons and complaint among the attached documents; the second page, or Certificate, was sent blank; and the third page summarized the attached documents, including the summons and complaint. Upon receiving Burda's USM794 Forms and the summons and complaint, the Ministry ofJustice dispatched local French police to serve the documents on Viertel in August 1998. Following two visits to Viertel by the police, Burda received back two police reports documenting the service attempts. It is unclear from the record who returned these reports to Burda. The first police report, dated August 3, 1998, describes the unsuccessful attempt by the French police to serve Viertel WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 Burda Media, Inc. v. Viertel, 417 F.3d 292 (2005) RICO Bus.Disp.Guide 10,914 on behalf of two of his companies. Viertel refused to accept service because the documents pertained to companies to which he was allegedly not connected. The second police report, dated August 12, 1998, describes the more successful attempt by the French police to serve Viertel in his personal capacity. The report describes the nature of the visit as “[d]elivery of judicial instruments from the Court of NEW YORK (USA).” According to the declaration log, Viertel “acknowledge[d] having taken possession oftwo files concerning [him] directly,” but refused to accept those documents concerning his former companies. Viertel added, “I point out, however, that the period allowed for the service of these documents has expired. Nevertheless, I agree to take cognizance of the documents which concern me.” Viertel signed the declaration 10g, as did Pascal Robert, the French police officer who completed service. Although the Burda plaintiffs received these two police reports, they did not receive the formal Certificate. In November 1998, Burda submitted Proof of Service to the district court which stated that the papers attached thereto proved that on August 3, 1998 and August 12, 1998, a summons and complaint were served on Viertel and his companies in France pursuant to Rule 4 of the Federal Rules of Civil Procedure and the Hague Convention. The attached papers included (1) the USM-94 Forms sent to the Ministry of Justice on July 14, 1998, (2) the summons and complaint “in the form attached to each” USM-94 Form, and (3) the two police reports from August 1998. In January 1999, Burda wrote Viertel at his address in France where he had been *297 served by the French police. The Burda plaintiffs advised Viertel that they had received proof of service from the French police, but no one had yet appeared as counsel on his behalf. Viertel did not respond to this inquiry. In December 1999, Burda filed an application for entry of default against Viertel and Telecommunication Partners In the accompanying affidavit, Burda's counsel stated that Viertel and TPL were properly served and that more than twenty Limited (“TPL”), one of Vienel's companies? days had elapsed from the date of service without a response from either defendant. The Clerk ofthe Court issued a Clerk's Certificate of Default by Viertel and TPL. See Fed.R.CiV.P. 55(a). In March 2000, Burda moved for entry of default judgment against Viertel and TPL. Although Viertel was served with Burda‘s motion for default judgment in both France and Florida, where he had recently purchased a home, Viertel did not respond. On April 10, 2000, the district court entered a default judgment against Viertel and TPL in the amount of approximately $2.75 million. See Fed.R.CiV.P. 55(b)(2). It is undisputed that Viertel knew of this default judgment by October 2001 at the latest. Meanwhile, Viertel was criminally prosecuted in the Southern District of New York for his involvement in the fraudulent scheme. One of the witnesses at his trial was Pascal Robert, the French policeman who served Viertel in August 1998. Robert testified that he knew that the papers he delivered were legal papers “emanating from a couIt.” He also testified that he received the documents “Via the office of the Nice prosecutor.” In October 2002, a jury found Viertel guilty of mail fraud, wire fraud, and conspiracy to commit mail and wire fraud. See United States v. Vzertel, 2003 WL 367867 (S.D.N.Y. Feb.19, 2003) (denying motion for new trial following conviction). He was ultimately sentenced to twenty-one months' imprisonment and three years' supervised release in addition to restitution and fines. See United States v. Viertel, 98 Fed.Apr. 68 (2d Cir. May 28, 2004) (affirming conviction). In October 2003, Viertel, pro se, moved, inter alia, to vacate the default judgment under various theories.3 Viertel eventually obtained counsel, who clarified that Viertel moved pursuant to Fed.R.CiV.P. 60(b)(4) on the basis that the default judgment was void for want of personal jurisdiction, specifically improper service of process. Along with his motion, Viertel submitted an affidavit denying receipt of the summons. On May 18, 2004, the district court denied Viertel's motion to vacate the default judgment in its entirety. See Burda Media, 2004 WL 1110419, at *9. The district court held, inter alia, that: (1) Burda complied with the Hague Convention notwithstanding the failure ofthe Ministry of Justice t0 return a Certificate, id. at *6-*7; (2) actual receipt of the summons is not required under the Hague Convention, id. at *7-*9; and (3) even if actual receipt of the summons is required, Viertel's affidavit denying receipt of the summons is incredible, id. at *9. This appeal followed.4 WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 Burda Media, Inc. v. Viertel, 417 F.3d 292 (2005) RICO Bus.Disp.Guide 10,914 *298 DISCUSSION A. Standard ofReview Federal Rule of Civil Procedure 60(b) governs motions for relief from a final judgment or order and provides six independent grounds for relief. See also Fed.R.CiV.P. 55(0) (providing that default judgments may be set aside in accordance with Rule 60(b)). Only one ofthese grounds, Rule 60(b)(4), is relevant on this appeal. Under subsection (b)(4), a district court may relieve a party from a final judgment if “the judgment is void.” Fed.R.CiV.P. 60(b)(4). “Whereas we generally review motions pursuant to the provisions of Rule 60(b) for abuse of discretion, we review de novo a district court's denial of a Rule 60(b)(4) motion.” State St. Bank & Trust C0. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 178 (2d Cir.2004) (citing Central Vermont Public Serv. Corp. v. Herbert, 341 F.3d 186, 189 (2d Cir.2003)). In an earlier decision, our Court had applied an abuse of discretion standard in reviewing the denial of a motion to vacate a default judgment under various subsections of Rule 60(b), including subsection (b)(4). See Old Republic Ins. C0. v. Pacific Fin. Servs. 0fAm., Ina, 301 F.3d 54, 57 (2d Cir.2002). Old Republic cited SEC v. McNulty, 137 F.3d 732, 738 (2d Cir.1998), which had correctly applied an abuse of discretion standard to review of the denial of a motion to vacate a default judgment under subsections (b)(l) and (b) (6) of Rule 60. There was no claim in McNulty that the challenged judgment was void, under subsection (b)(4), for lack of jurisdiction. Reliance 0n McNulty in Old Republic, which challenged a judgment under subsection (b)(4) 0n the ground of lack ofjurisdiction, was therefore ill-advised. We take this opportunity to reconfirm the holdings ofState St. Bank and Central Vermont that the de nova standard ofreview is to be used for review of the denial of a motion to vacate a default judgment challenged, under subsection (b)(4), for lack of jurisdictions “Under Rule 60(b)(4) a deferential standard ofreview is not appropriate because ifthe underlying judgment is void, it is aper se abuse ofdiscretion for a district court to deny a movant’s motion to vacate the judgment under Rule 60(b)(4).” State St. Bank, 374 F.3d at 178 (citation and internal quotation marks omitted). B. Burden ofProof The patties cannot agree on who has the burden of proving that the district court in the underlying action had personal jurisdiction over the defendant to enter the default judgment. Viertel claims that the Burda plaintiffs continue to carry the burden ofprovingjurisdictionjust as they would ifViertel had earlier moved to dismiss for insufficient service of process under Rule 12(b)(5). See Mende v. Milestone Tech, Ina, 269 F.Supp.2d 246, 251 (S.D.N.Y.2003) (when a defendant moves to dismiss under Rule 12(b)(5), the plaintiff bears the burden ofproving adequate service). *299 Burda, 0n the other hand, responds that Viertel, as the defaulting defendant, should bear the burden on a post-judgment Rule 60(b)(4) motion so as not to reap any benefit from his delay. This case provides us an opportunity to resolve this issue, which has been brewing in the district courts for some time. Compare Donnely v. Copelandlntra Lenses, Ina, 87 F.R.D. 80, 85 (E.D.N.Y. 1 980) (burden to prove personal jurisdiction remains with the plaintiff on a Rule 60(b)(4) motion), with Miller v. Jones, 779 F.Supp. 207, 210-11 (D.Conn.1991)(shifting burden to defendant on a Rule 60(b)(4) motion); see also Popper v. Podhragy, 48 F.Supp.2d 268, 271 n. 5 (S.D.N.Y.l998) (listing cases). We now hold that on a motion to vacate a default judgment based on improper service of process where the defaulting defendant had actual notice of the original proceeding but delayed in bringing the motion, the defendant bears the burden of proof to establish that the purported service did not occur. See Bally Export Corp. v. Balican Ltd, 804 F.2d 398, 401 (7th Cir. 1986) (Where defendant ignored process and challenged default judgment on a Rule 60(b)(4) motion, the court held that defendant should bear the burden ofproving an absence of personal jurisdiction on any subsequent collateral attack on the judgment); CSC Holdings, Inc. v. Fung, 349 F.Supp.2d 613, 616 (E.D.N.Y.2004) (“A defendant with notice of the proceedings bears the burden of establishing the claim that service was not properly effected”); Sartor v. Utica Taxi Ctn, Ina, 260 F.Supp.2d 670, 677 (S.D.N.Y.2003) (same); Velez v. Vassallo, 203 F.Supp.2d 312, 324-25 & n. 10 (S.D.N.Y.2002) (same). Then District Judge José Cabranes aptly remarked that placing the burden on the defendant reflects “the concerns of comity among the district courts of the United States, the interest in resolving disputes in a single judicial proceeding, the interest of the plaintiff in the choice of forum, and the fear of prejudice against a plaintiff who, owing to delay, might in subsequent collateral proceedings no longer have evidence 0f personal jurisdiction that existed at the time of the underlying suit.” Miller, 779 F.Supp. at 210-11 (citing Rohm & Haas C0. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 Burda Media, Inc. v. Viertel, 417 F.3d 292 (2005) RICO Bus.Disp.Guide 10,914 v. Aries, 103 F.R.D. 541, 543 (s.D.N.Y.1984)). We need say IlO more. In the present case, Vlertel demonstrated his knowledge of this case in August 12, 1998, When he told officer Pascal Robert that “the period allowed for the service of these documents had expired.” Instead ofmoving to dismiss under Rule 12(b)(5), Viertel chose to delay. He now bears the burden of proving that he was not properly served. C. Service ofProcess Under the Hague Convention Viertel argues that service of process was invalid under the Hague Convention for what we decipher to be two independent reasons. First, he argues that Burda failed to comply with various procedural requirements unique to the Hague Convention. Alternatively, Viertel argues that service was invalid under the Hague Convention because he never received the summons. We reject both arguments. 1. Procedural Requirements Federal Rule of Civil Procedure 4(f) governs service upon individuals in a foreign country, such as Viertel. The rule allows for service of process “by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention.” Fed.R.CiV.P. 4(f)(1). Here, both the United States and France are signatories to the Hague Convention, and thus service of *300 process on a defendant in France is governed by the Hague Convention. The Hague Convention of 1965 was intended “to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.” Hague Convention, Preamble. The Hague Convention provides for several alternate methods of service: (1) service through the Central Authority of member states; (2) service through consular channels; (3) service by mail if the receiving state does not object; and (4) service pursuant to the internal laws of the state. See id. Ans. 5, 6, 8, 9 & 10. In this case, Burda elected to serve Viertel under the first option: service through the Central Authority. Under this method, process is first sent to the Central Authority of the foreign jurisdiction in which process is to be served, which in this case is the French Ministry of Justice. Id. Art. 3. The Central Authority must then arrange to have process served on the defendants. Id. Art. 5. Upon completion of service, the Central Authority must complete a Certificate detailing how, where, and when service was made, or explaining why service did not occur. Id. Art. 6. Finally, the completed Certificate is returned to the applicant. Id. According to Viertel, service of process failed to conform to three Hague Convention procedures: (1) the Burda plaintiffs failed to prove that they sent the required documents to the Ministry of Justice; (2) the Ministry of Justice failed to complete and return a formal Certificate; and (3) the Burda plaintiffs failed to comply with Art. 15 of the Hague Convention, which governs the entry of default judgments in the absence of a Certificate confirming service. As set out below, all three arguments fail. a. Did Burda Forward Process t0 the French Ministry 0f Justice? Viertel first maintains that the Burda plaintiffs cannot prove that they sent any judicial documents to the French Ministry of Justice in contravention of Art. 3. Vlertel isflatly wrong. Notwithstanding Viertel's there is overwhelming evidence that Burda sent the Ministry of broad allegations, Justice the necessary judicial documents for service on Viertel, including the USM-94 Forms for each defendant, summons, and complaint. First, Viertel himselfacknowledges that he obtained Burda's USM-94 Forms from the French Ministry of Justice. Indeed, Viertel provided the district court with one of the executed forms submitted by Burda to the French authorities and attached it to his affidavit in support of his motion. This form, in turn, lists the summons and complaint among the attached documents. Second, the Burda plaintiffs submitted the affidavits of their attorneys swearing to the mailing of the judicial documents. Finally, at Vlertel's criminal trial, officer Robert testified that French prosecutors passed along the legal papers that he eventually delivered to Viertel. Although the record could have been more complete with other indicia ofmailing, Viertel's admission and the other evidence presented sufficiently demonstrate that Burda sent the required judicial documents to the Ministry of Justice. b. Failure t0 Return a Formal Certificate Viertel next argues that service was improper because the Ministry of Justice failed to return a formal Certificate. Although the Burda plaintiffs concede that the Ministry of Justice did not return a formal Certificate in the form of page two of the USM-94 Form, they argue that the *301 second WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 5 Burda Media, Inc. v. Viertel, 417 F.3d 292 (2005) RICO Bus.Disp.Guide 10,914 police report was an adequate substitute. Burda's arguments are persuasive. The Hague Convention requires a Central Authority or its designated agent to “complete a certificate in the form of the model annexed to the present Convention.” Hague Convention, Art. 6. This model requires the foreign agency to state whether the service occurred or not and to “include the method, the place, and the date of service and the person to whom the document was delivered.” Id. As the district court properly observed, the police report dated August 12, 1998 provides all of this information and thus serves the same purpose as a formal Certificate: to confirm service, or lack thereof, under the Hague Convention. The fact that the French police, rather than the Ministry of Justice, completed the report is immaterial. The express terms ofArt. 6 provide that the Central Authority “or any authority which it may have designated for that purpose” shall complete the Certificate. Id.; see Greene v. Le Dorze, 1998 WL 158632, at *4 (N.D.Tex. Mar.24, 1998) (concluding that a Certificate was properly completed by local French police). We see no reason why the police report cannot serve as a substitute for a formal Certificate in this case. Notwithstanding its separate format, the police report provides the same information as the Certificate. The language of Art. 6 does not expressly require the exact form to be filled out, but merely requires a certificate “in the form of the model.” To hold that only the exact form must be used would not only elevate form over substance, but would impose an unreasonably strict degree of compliance with the Hague Convention. Cases addressing similar issues have held that the failure to comply strictly with the Hague Convention is not automatically fatal to effective service. See Greene, 1998 WL 158632, at *2. One court aptly observed that although the Hague Convention “carefully articulates the procedure which a litigant must follow in order to perfect service abroad, it does not prescribe the procedure for the forum Court to follow should an element of the procedure fail.” Fox v. Regie Nationale des Usines Renault, 103 F.R.D. 453, 455 (W.D.Tenn. 1 984). Consequently, the same court held that the Hague Convention should be read together with Rule 4, which “stresses actual notice, rather than strict formalism.” Id. In Fox, the district court denied a foreign defendant's motion to dismiss based on insufficiency ofprocess under the Hague Convention. Id. The foreign defendant based its claim on the failure of the French Central Authority to return a Certificate to the plaintiff documenting the service upon the defendant. Id. The court held that service of process was properly perfected under the Hague Convention, notwithstanding the failure of the Central Authority to return a Certificate, where the plaintiffattempted in good faith to comply With the Hague Convention and where the defendant had sufficient notice of the action such that no injustice would result. Id.; see also Greene, 1998 WL 158632, at *2-3 (denying motion to dismiss on the basis of a technical defect in the returned Certificate where plaintiff followed the Hague Convention to the letter and defendant was not prejudiced). Here, Burda attempted in good faith to comply with the Hague Convention. It was certainly not Burda's fault that the French authorities did not return a formal Certificate. Cf Greene, 1998 WL 158632, at *3 (“The fact that the French authorities made a mistake-one which appears to be merely clerical -does not render service ineffective.”). Moreover, Viertel suffered *302 no injustice by the return of a police report instead of a formal Certificate: the material information was the same; only the format differed. Viertel argues that Fox and Greene are inapposite because the defendants in those cases did not contest actual receipt of the summons. In fact, both defendants filed answers. However, Viertel does not dispute having received the complaint in this action, so like the defendants in Fox and Greene, there is no prejudice to him. c. Article I5 Article 15 provides that a member state may permit its courts to enter a default judgment in the absence of a returned Certificate Where at least six months have passed since the documents were sent to the defendant and the plaintiff has made “every reasonable effort” to obtain a Certificate. Hague Convention, Art. 15. Viertel argues that the Burda plaintiffs did not comply with Art. 15 in obtaining a default judgment because they made no effort, let alone “every reasonable effort,” to obtain a Certificate. We reject this argument because Art. 15 is inapplicable in this case. On its face, Art. 15 applies only where “no certificate of any kind has been received.” Id. As discussed, the second police report qualifies as a Certificate and certainly meets this broader standard of “any kind” of Certificate. Therefore, Art. 15 cannot serve as a means to challenge the default judgment in this case. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 6 Burda Media, Inc. v. Viertel, 417 F.3d 292 (2005) RICO Bus.Disp.Guide 10,914 While we find that service was properly effected, we caution future plaintiffs from relying on something less complete and official than the police report in this case. A prudent plaintiff might seek to obtain a Certificate “of any kind” rather than rely on a court's post hoc approval of a potentially problematic proof of service. In other words, where there is any doubt as to whether an adequate Certificate “of any kind” was returned, a plaintiff should comply with Art. 15 before seeking a defaultjudgment. Doing otherwise runs the risk that a default judgment will be vacated under Art. 15. In this case, of course, Burda did not need to comply with Art. 15 because the police report adequately served the purposes of the Certificate. The Burda plaintiffs presumably were frustrated With Viertel's dilatory tactics and their own costly efforts to serve process. Although not a model, Burda complied with the Hague Convention. 2. Actual Receipt 0fthe Summons Alternatively, Viertel argues that service was invalid because he never received the summons. In denying Viertel's motion, the district court first concluded that actual receipt of the summons is not required under the Hague Convention. The district court further found that, even if actual receipt of the summons is required, Vlertel's affidavit denying receipt of the summons was incredible. In light ofthe strength of this alternative holding, we do not need to reach the thornier issue of whether actual receipt of the summons is required under the Hague Convention. Toward meeting his burden to show that he was not served with the summons, Viertel offered only his own affidavit. The district court, as fact-finder, had ample evidence from which to conclude that Viertel's affidavit lacked credibility, including his fraud conviction and his two-year delay in moving to vacate for improper service despite his knowledge of the default judgment since 2001 at the latest. See Frankart Distributors, Inc. v. Levitz, 1990 WL 127697, at *2 (E.D.N.Y. Aug.16, 1990) (bare allegation made over four and one- *303 halfyears after service that envelope mailed by process serverwas empty held insufficient to impeach process server's sworn statement that a complaint and summons had been mailed). Footnotes Although Viertel argues that the Burda plaintiffs submitted no proof that they sent a summons to the Ministry of Justice or that the French police served a summons on Vlertel, there is ample evidence to the contrary. While neither the police reports nor officer Robert's testimony explicitly mentions “summons,” it is clear that the documents accepted by Viertel were legal documents coming from a New York court. There was no other purpose for officer Robert's Visit but to serve these documents. Moreover, Viertel does not dispute receiving the complaint and acknowledges the receipt of two transmission folders. Yet he has deliberately chosen not to identify the documents within those folders. It is patently incredible to assume that the documents within those folders have no connection to those documents provided by Burda to the French authorities, which included the summons. Thus, we affirm the district court's alternative holding that Viertel failed to prove that he did not receive the summons. Finally, in addition to the Hague Convention, service of process must also satisfy constitutional due process. See Ackermann v. Levine, 788 F.2d 830, 838 (2d Cir.1986). Due process requires “notice reasonably calculated to apprise interested parties of the pendency of the action.” Mullane v. Central Hanover Bank & Trust C0., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Burda's service of process by personal delivery through the French authorities easily meets this standard, a point which Viertel does not dispute in his brief. Cf Ackermann, 788 F.2d at 841 (“[S]ervice by registered mail does not Violate constitutional due process.”); 4A C. Wright & A. Miller, Federal Practice & Procedure § 1095 at 515-16 (2002) (service of process by personal delivery within the state “avoids any question as to whether the defendant has received notice of the suit and is unlikely to give rise to any objections to the service based on due process”). CONCLUSION For the foregoing reasons, we Affirm the judgment denying Viertel's motion to vacate the default judgment. All Citations 417 F.3d 292, RICO Bus.Disp.Guide 10,914 WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 7 Burda Media, Inc. v. Viertel, 417 F.3d 292 (2005) RICO Bus.Disp.Guide 10,914 1 Despite their troubles with Viertel, the Burda plaintiffs easily served Blumenberg, who eventually settled and is not a party to this appeal. Blumenberg was later criminally prosecuted and convicted in connection with this scheme. See United States v. Blumenberg, 96 Fed.Appx. 776 (2d Cir. May 13, 2004) (affirming sentence imposed on charges of mail and wire fraud, conspiracy, and filing false tax returns). With respect to service on Viertel's companies, Burda sought the defaultjudgment only against TPL because Burda had proof that Viertel was a managing director of TPL and therefore was served as its representative. Although Burda obtained a defaultjudgment against Viertel and TPL, Viertel did not seek to vacate the defaultjudgment as to TPL. In August and October 2004, while Viertel's appeal was pending in this Court, Viertel moved for reconsideration of the May 2004 decision denying his motion to vacate the default judgment. Viertel proceeded pro se despite the fact that he was represented by counsel for purposes of his original motion and this appeal. In February 2005, the district court denied Viertel's motion for reconsideration because he failed to present any facts or legal authority demonstrating that the original judgment was in error. See Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir.1992) (per curiam) (observing that a district court may entertain and deny a Rule 60(b) motion filed during the pendency of an appeal without disturbing the jurisdiction of the Court of Appeals). This opinion has been circulated to the members of the panels that decided Old Republic, State St. Bank, and Central Vermont. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 8 EXHIBIT 8 6/22/2021 AUTHORITY HCCH | Authority Canada - Central Authority & practical information Central Authority(ies): Click here to access the list of all Central Authorities designated by Canada (list up-to-date as ofJune 2020). Comment: to save time, requests should be forwarded directly to the Central Authority of the province or territory concerned. They may, however, also be forwarded to the Federal Central Authority which will transmit them to the relevant Central Authority. Forwarding authorities (Art. 3(1 )): Methods of seNice (Art. 5(1 )): httpszllwww. hcch.net/en/states/authorities/detaiIs3/?aid=248 Practical Information: (The following information was provided by the relevant State authorities or was obtainedfrom the replies to the Service Convention Questionnaires) - Attorney General for Canada - Attorney General, Ministry of the Attorney General or Minister of Justice of a province or territory - Clerks of the courts and their deputies for a judicial or a court district. - Central Authority for Alberta - Deputy Minister ofJustice, Northwest Territories - Huissiers and sheriffs - Local registrars - Members of the law societies ofall provinces and territories - Members ofthe Board of Notaries of the Province of Québec (for non-Iitigious matters only) - Revenu Québec Formal Service (Art. 5(1)(a)) In all provinces and territories in Canada, with the exception of the province of Québec, the term ”service” covers both seNice and "notification”. For seNice or notification requests transmitted to a Canadian Central Authority under Article 5(1 )(a), seNice or notification will be effected using the same methods as would be used to sen/e or notifyjudicial documents for proceedings in the Central Authority’s jurisdiction. The normal procedure for service in Canada is personal seNice made by a process sewer in Alberta, a huissier in Québec, an enforcement officer of the Ministry of the Attorney General in 1/5 6/22/2021 httpszllwww. hcch.net/en/states/authorities/detaiIs3/?aid=248 HCCH | Authority Ontario or a sheriff or deputy sheriff elsewhere in Canada, on an individual or on a corporation by handing a copy of the document to the individual, or to an officer, director or agent of the corporation at its place of business. Notification in Québec may be made by delivering the original or certified copy or abstract of the act, document or notice to the person to be notified and obtaining a receipt therefore [XpressPost]. Central Authorities in Canada will consider requests for seNice or notification by a particular method requested by the applicant under 5(1 )(b) to the extent that such a method is not inconsistent with the law of theirjurisdiction. Federal Court and Federal Court of Appeal: Federal Courts Rules, SOR/98-1 O6. Alberta: Alberta Rules of Court, Alta. Reg. 124/201 O. British Columbia: Supreme Court Civil Rules, B.C. Reg. 168/2009. Manitoba: Court of Queen's Bench Rules, Man. Reg. 553/88. New Brunswick: Rules of Court, N.B. Reg. 82-73. Newfoundland and Labrador: Rules of the Supreme Court, 1986, S.N.L. 1986, c 42, Sch D. Northwest Territories: Rules of the Supreme Court of the Northwest Territories, N.W.T. Reg. O1 0-96. Nova Scotia: Nova Scotia Civil Procedure Rules. Nunavut: Rules of the Supreme Court of the Northwest Territories, N.W.T. Reg. 01 0-96. Ontario: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Prince Edward Island: Rules of Civil Procedure. Québec: Sewice: Code of Civil Procedure, R.S.Q., chapter C-25.01. Notification: Code of Civil Procedure, R.S.Q., chapter C-25.01. Saskatchewan: Queen's Bench Rules. Yukon: Rules of Court, Y.O.I.C. 2009/65. Service by a particular method (Art. 5 (1)(b)) Central Authorities in Canada will consider requests for seNice by a particular method requested by the applicant under 5(1 )(b) to the extent that such a method is not inconsistent with the law of their jurisdiction. Informal delivery (Art. 5(2)) The practice of informal delivery ("par simple remise") ofjudicial or extrajudicial documents is not known in Canada. 2/5 6/22/2021 Translation requirements (Art. 5(3)): Costs relating to execution ofthe request for service (Art. 12): httpszllwww. hcch.net/en/states/authorities/detaiIs3/?aid=248 HCCH | Authority For both formal seNice and seNice by a particular method, translation requirements will depend on the province or territory concerned. ForAlberta, British Columbia, Newfoundland and Labrador, Nova Scotia and Prince Edward Island, all documents must be written in or translated into English. For Manitoba, Northwest Territories, Nunavut, Ontario and Saskatchewan all documents must be written in or translated into English or French. For New Brunswick and the Yukon, all documents must be written in or translated into English or French. The Central Authority of New Brunswick or the Yukon may resen/e the right to require documents to be translated into English or French depending on the language understood by the addressee. For Québec, originating documents should be drafted in or translated into French. In some instances, a French translation of the "summary of the document to be sewed” may suffice subject to the recipient’s consent. The Central Authority for Québec may, on request in writing by the forwarding authority, allow seNice or notification of documents drafted in English or translated from a foreign language into English subject to the forwarding authority confirming that the recipient understands English. Recipients in Québec may object to receiving a document and challenge the validity of a seNice or notification if the translation requirements applicable in Québec are not complied with. Click here to read all the declarations made by Canada under the Sewice Convention. Costs for the execution of service will be $1 00 Can. In Québec, execution of seNice by a bailiff (huissier) costs $1 00, and notification is free of charge. Click here to access the list ofall provincial and territorial Central Authorities designated by Canada to receive requests for seNice in theirjurisdiction. Click here for information on methods of payment. 3/5 6/22/2021 Time for execution of request: Judicial officers, officials or other competent persons (Art. 10(b)(c)) Oppositions and declarations (Art. 21 (2)): Art. 6: Art. 8(2): Art. 9(1 )1 Art. 10(a): Art. 10(b): Art. 10(C): Art. 15(2): httpszllwww. hcch.net/en/states/authorities/detaiIs3/?aid=248 HCCH | Authority The average time for performance of seNice is: Alberta: 4 weeks British Columbia: 3-6 weeks Manitoba: 3-4 weeks New Brunswick: 2-4 weeks Newfoundland and Labrador: 4 - 6 weeks Northwest Territories:3-6 weeks Nova Scotia: 2-4 weeks Nunavut: 4-6 weeks Ontario: 4-6 weeks Prince Edward Island: 2-3 weeks Québec: 4 weeks Saskatchewan: 2-4 weeks Many businesses commonly referred to as "Process Sewers” serve judicial and extra-judicial documents, for a fee. These businesses are listed in the Yellow Pages under "process sewers". In the province of Québec, seNice must be effected by a sheriff or a member of the Chambre des huissiers de justice du Québec. Chambre des huissiers de justice du Québec 507, PIace-d'Armes, bur. 970 Montréal, Québec H27 2W8 Telephone : +1 (514)721 1100 Toll free: +1 (855) 721 1100 Fax: +1 (514) 721 7878 Email: chjq@chjq.ca http://www.chjq.ca/ Click here to read all the declarations made by Canada under the Sewice Convention. In addition to the Central Authorities, the sheriffs, deputy-sheriffs, sub-sheriffs, clerk of the court or his/her deputy for the judicial district (except in Manitoba where there are no judicial districts) in which the person is to be sewed or the huissiers (only in Quebec) are competent to complete the certificate of seNice. No opposition The Central Authorities in Canada designated in accordance with Articles 2 and 18 ofthe Convention are competent to receive requests for seNice transmitted by a foreign consul within Canada. No opposition No opposition No opposition Declaration of applicability (see declarations) 4/5 6/22/2021 Art. 16(3): Derogatory channels (bilateral or multilateral agreements or internal law permitting other transmission channels) (Arts. 11, 19, 24 and 25) Disclaimer: Information may not be complete orfu/ly updated - please contact the relevant authorities to verify this information. Useful links: This page was last updated on: 17 March 2021 HCCH | Authority Declaration of applicability (see declarations) To view the bilateral treaties regardingjudicial cooperation in civil and commercial matters that are in force for Canada, please visit http://www.accord-treaty.gc.ca/ under the headings "Bilateral" and ”Judicial Co-operation (civil and commercial)". Alberta: https://www.a|berta.ca/office-of-sheriff-civiI-enforcement.aspx Quebec: https://www.justice.gouv.qc.ca/en Saskatchewan: www.sasklawcourts.ca www.qp.gov.sk.ca (to view Saskatchewan legislation, regulations, rules of court and court forms) Conventions (incl. Protocols and Principles) Convention of 1 5 November 1965 on the Sewice Abroad ofJudicial and Extrajudicial Documents in Civil or Commercial Matters [14] httpszllwww. hcch.net/en/states/authorities/detaiIs3/?aid=248 5/5 EXHIBIT 9 Rules of Civil Procedure - Ont. Reg. 194, R.R.O. 1990, Reg. 194, s. 16.01 Ontario Rules Ont. kg. 34 - Rules of Civil Procedure Service Rule 16 - Service of Documents Most Recently Cited in: Paul v. Veta, 2020 ONSC 6839, 2020 CarswellOnt 16486, 326 A.C.W.S. (3d) 204 | (Ont. S.C.J., Nov 9, 2020) R.R.O. 1990, Reg. 194, s. 16.01 s 16.01 General Rules for Manner of Service Currency 16.01 General Rules for Manner 0f Service Originating Process 16.01(1) An originating process shall be served personally as provided in rule 16.02 or, by an alternative to personal service as provided in rule 16.03. 16.01(2) A party who has not been served with the originating process but delivers a defence, notice of intent to defend or notice of appearance shall be deemed to have been served with the originating process as of the date of delivery. All Other Documents 16.01(3) No other document need be served personally, or by an alternative to personal service, unless these rules or an order require personal service 0r an alternative to personal service. 16.01(4) Any document that is not required to be served personally or by an alternative to personal service, (a) shall be served on a party who has a lawyer of record by serving the lawyer, and service may be made in a manner provided in ru_le 16.05; (b) may be served on a party acting in person or on a person who is not a party, (i) by mailing a copy of the document to the last address for service provided by the party or other person or, if no such address has been provided, to the party’s or person’s last known address, (ii) by personal service or by an alternative t0 personal service, 0r (iii) by use of an electronic document exchange of which the party or person is a member or subscriber, but, where service is made under this subclause between 4 pm. and midnight, it is deemed to have been made on the following day, and (iv) by e-mailing a copy to the last e-mail address for service provided by the party or other person or, ifn0 such e- mail address has been provided, to the party’s or person’s last known e-mail address in accordance With subrule 16.06. 1(1), but, where service is made under this subclause between 4 pm. and midnight, it is deemed t0 have been made 0n the following day. Amendment History WEStlaWNEXt CANADA Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). A|| rights reserved. 1 Rules of Civil Procedure - Ont. Reg. 194, R.R.O. 1990, Reg. 194, s. 16.01 O. Reg. 113/01, s. 2; 131/04, s. 8; 260/05, s. 3; 575/07, s. 15; 170/14, s. 3; 689/20, s. 14 Currency Ontario Current to S.O. 2021, c. 17 and O. Reg. 373/21 (June 5, 2021) Concordance References Concordance 15, Service ofDocuments End of Document Copyright © Thomson Reuters Canada Limited 0r its licensors (excluding individual court documents). All rights reserved. WEStlaWNEXtrC-AW Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). A|| rights reserved. 2 EXHIBIT 10 Rules of Civil Procedure - Ont. Reg. 194, R.R.O. 1990, Reg. 194, s. 1.03 Ontario Rules Ont. kg. EA - Rules of Civil Procedure General Matters Rule 1 - Citation, Application and Interpretation Most Recently Cited in: Topping v. Foreman, 2021 ONSC 1139, 2021 CarswellOnt 1825, 330 A.C.W.S. (3d) 264 | (Ont. S.C.J., Feb 16, 2021) R.R.0. 1990, Reg. 194, s. 1.03 S 1.03 Currency 1.03 1.03(1)Definitions In these rules, unless the context requires otherwise, ”action” means a proceeding that is not an application and includes a proceeding commenced by, (a) statement of claim, (b) notice of action, (c) counterclaim, (d) crossclaim, or (e) third or subsequent party claim; ”appellant” means a person who brings an appeal; ”appellate court” means the Court of Appeal or the Divisional Court, as the circumstances require; ”applicant” means a person who makes an application; ”application” means a proceeding commenced by notice 0f application; ”certificate of appointment of estate trustee” means letters probate, letters of administration or letters of administration with the willannexed, and includes a small estate certificate or amended small estate certificate (74.13, 74.13.1, 74.20, 74.203, 74.23, 74.23.1,74.26, 74.31, 74.1C or 74.1F); ”county” includes a district, a regional or district municipality, and the City 0f Toronto; ”court” means the court in which a proceeding is pending and, in the case of a proceeding in the Superior Court of Justice, includes a case management master; Proposed Amendment- 1.03(1) “court” ”court” means the court in which a proceeding is pending and, in the case of a proceeding in the Superior Court of Justice, includes an associate judge; O. Reg. 383/21, s. 15 [Not in force at date ofpublication.] ”defendant” means a person against whom an action is commenced; WEStlaWNEXtVCAW Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). A|| rights reserved. 1 Rules of Civil Procedure - Ont. Reg. 194, R.R.O. 1990, Reg. 194, s. 1.03 ”deliver” means serve and file with proof of service, and ”delivery” has a corresponding meaning; ”disability” where used in respect of a person, means that the person is, (a) a minor, (b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, I992 in respect of an issue in the proceeding, whether the person has a guardian or not, or (c) an absentee within the meaning of the Absentees Act; ”discovery” means discovery 0f documents, examination for discovery, inspection of property and medical examination 0f a party as provided under Rules 30 to 33; ”document” includes data and information in electronic form; ”electronic” includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means, and ”electronically” has a corresponding meaning; ”hearing” means the hearing of an application, motion, reference, appeal or assessment of costs, or a trial; ”holiday” means, (a) any Saturday or Sunday, (b) New Year’s Day, (b. 1) Family Day, (c) Good Friday, (d) Easter Monday, (e) Victoria Day, (f) Canada Day, (g) Civic Holiday, (h) Labour Day, (i) Thanksgiving Day, (j) Remembrance Day, (k) Christmas Day, (1) Boxing Day, and (m) any special holiday proclaimed by the Governor General 0r the Lieutenant Governor, and where New Year’s Day, Canada Day or Remembrance Day falls on a Saturday 0r Sunday, the following Monday is a holiday, and where Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday are holidays, and where Christmas Day falls on a Friday, the following Monday is a holiday; ”information technology” [Revoked O. Reg. 14/04, s. 1(1).] WEStlaWNEXt- CANADA Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). A|| rights reserved. 2 Rules of Civil Procedure - Ont. Reg. 194, R.R.O. 1990, Reg. 194, s. 1.03 ”judge” means a judge 0f the court; ProposedAmendment- 1.03(1) “judge” ”judge” means a judge of the court but does not include an associate judge; O. Reg. 383/21, s. 1(2) [Not in force at date ofpublication.] ”judgment” means a decision that finally disposes of an application or action on its merits and includes a judgment entered in consequence of the default 0f a party; ”lawyer” means a person authorized under the Law Society Act to practise law in Ontario; ”lawyer’s office” means the office of the lawyer of record as set out in the last document filed by him or her; ”limited scope retainer” means the provision of legal services by a lawyer for part, but not all, of a client’s legal matter by agreement between the lawyer and the client; ”motion” means a motion in a proceeding or an intended proceeding; ”moving party” means a person Who makes a motion; ”order” includes a judgment; ”originating process” means a document that commences a proceeding under these rules, and includes, (a) a statement of claim, (b) a notice of action, (c) a notice of application, (d) an application for a certificate 0f appointment 0f estate trustee, a small estate certificate or an amended small estate certificate, (e) a counterclaim against a person who is not already a party to the main action, and (f) a third or subsequent party claim, but does not include a counterclaim that is only against persons Who are parties to the main action, a crossclaim 0r a notice 0f motion; ”partial indemnity costs” mean costs awarded in accordance With Part1 0f Tariff A, and “0n a partial indemnity basis” has a corresponding meaning; ”person” includes a party to a proceeding; ”plaintiff” means a person who commences an action; ”proceeding” means an action or application; ”referee” means the person to whom a reference in a proceeding is directed; ”registrar” means the Registrar 0f the Divisional Court or Court 0f Appeal, 0r a local registrar of the Superior Court 0f Justice, as the circumstances require; ”respondent” means a person against whom an application is made or an appeal is brought, as the circumstances require; WestlaWNEXtvC-AW Copyright © Thomson Reuters Canada Limited or its Iicensors (excluding individual court documents). AII rights reserved. 3 Rules of Civil Procedure - Ont. Reg. 194, R.R.O. 1990, Reg. 194, s. 1.03 ”responding party” means a person against whom a motion is made; ”solicitor’s office” [Repealed O. Reg. 575/07, s. 7(3).] ”statute” includes a statute passed by the Parliament 0f Canada. ”substantial indemnity costs” mean costs awarded in an amount that is 1.5 times what would otherwise be awarded in accordance with Part I of Tariff A, and “011 a substantial indemnity basis” has a corresponding meaning. ”timetable” means a schedule for the completion of one or more steps required to advance the proceeding (including delivery 0f affidavits of documents, examinations under oath, where available, or motions), established by order of the court 0r by written agreement 0f the parties that is not contrary to an order; ”will” includes any testamentary instrument of Which probate or administration may be granted. 1.03(2) [Revoked O. Reg. 14/04, s. 1(2).] Amendment History O. Reg. 535/92, s. 2; 484/94, s. 2; 69/95, s. 1; 442/97, s. 1; 570/98, s. 1; 292/99, s. 1(2); 284/01, s. 2; 427/01, s. 1(1); 308/02, s. 1; 14/04, s. 1; 131/04, s. 2; 42/05, s. 1; 260/05, s. 1; 575/07, s. 7; 438/08, s. 1; 231/13, s. 1; 711/20, s. 1; 383/21, s. 1(1), (3)- (5) Currency Ontario Current to S.O. 2021, c. 17 and O. Reg. 373/21 (June 5, 2021) Concordance References Concordance 1, Preliminary Concordance 2, Representation Concordance 153, Partial indemnity costs Concordance 195, Small Claims Rules End of Document Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). A11 rights reserved. WEStlaWNEXtrC-AW Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). A|| rights reserved. 4 EXHIBIT 11 Rules of Civil Procedure - Ont. Reg. 194, R.R.O. 1990, Reg. 194, s. 16.02 Ontario Rules Ont. Reg. 194 - Rules of Civil Procedure Service Rule 16 - Service of Documents Most Recently Cited in: Bunton v. FI‘A Logistics Inc. and Ikenouye, 2020 ONSC 5463, 2020 CarswellOnt 13047, 324 A.C.W.S. (3d) 202 | (Ont. S.C.J., Sep 14, 2020) R.R.O. 1990, Reg. 194, s. 16.02 s 16.02 Personal Service Currency 16.02Personal Service 16.02(1) Where a document is to be served personally, the service shall be made, (a) Individual- on an individual, other than a person under disability, by leaving a copy 0f the document With the individual; (b) Municipality7 on a municipal corporation, by leaving a copy of the document with the chairman, mayor, warden or reeve of the municipality, with the clerk or deputy clerk of the municipality or with a lawyer for the municipality; (c) Corporation- 0n any other corporation, by leaving a copy 0f the document with an officer, director 0r agent of the corporation, 0r With a person at any place 0f business 0f the corporation who appears t0 be in control 0r management of the place 0f business; (d) Board or Commission- on a board or commission, by leaving a copy of the document with a member or officer ofthe board or commission; (e) Person outside Ontario Carrying 0n Business in Ontario- 0n a person outside Ontario Who carries on business in Ontario, by leaving a copy 0f the document with anyone carrying on business in Ontario for the person; (f) Crown in Right 0f Canada- on Her Majesty the Queen in right of Canada, in accordance with subsection 23(2) of the Crown Liability and Proceedings Act (Canada); (g) Crown in Right 0f Ontario7 on Her Majesty the Queen in right of Ontario, in accordance with section 15 of the Crown Liability and Proceedings Act, 2019; (h) Attorney General7 0n the Attorney General 0f Ontario, by leaving a copy of the document with an employee of the Crown at the Crown Law Office (Civil Law) of the Ministry of the Attorney General; (i) Absentee- on an absentee, by leaving a copy of the document with the absentee’s litigation guardian, if there is one or, if not, WEStlaWNEXt CANADA Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). AII rights reserved. 1 Rules of Civil Procedure - Ont. Reg. 194, R.R.O. 1990, Reg. 194, s. 16.02 with the Public Guardian and Trustee; (j) Minor- on a minor, by leaving a copy of the document with the litigation guardian if one has been appointed or, if not, with the minor and, where the minor resides with a parent or other person having the care or lawful custody of the minor, by leaving another copy 0f the document with the parent or other person, but, where the proceeding is in respect of the minor’s interest in an estate or trust, the minor shall be served by leaving with the Children’s Lawyer a copy of the document bearing the name and address of the minor; (k) Mentally Incapable Person7 0n a mentally incapable person, (i) if there is a guardian 0r an attorney acting under a validated power of attorney for personal care with authority t0 act in the proceeding, by leaving a copy of the document with the guardian or attorney, (ii) if there is n0 guardian 0r attorney acting under a validated power 0f attorney for personal care With authority to act in the proceeding but there is an attorney under a power 0f attomey with authority t0 act in the proceeding, by leaving a copy of the document with the attorney and leaving an additional copy with the person, (iii) if there is neither a guardian nor an attorney With authority to act in the proceeding, by leaving a copy 0f the document bearing the person’s name and address with the Public Guardian and Trustee and leaving an additional copy with the person; (1) [Revoked O. Reg. 69/95, s. 6(2)] (m) Partnership- on a partnership, by leaving a copy of the document With any one 0r more 0f the partners or with a person at the principal place ofbusiness 0f the partnership Who appears to be in control or management 0f the place 0f business; and (n) Sole Proprietorship7 on a sole proprietorship, by leaving a copy of the document with the sole proprietor or with a person at the principal place 0f business of the sole proprietorship who appears to be in control or management of the place ofbusiness. 16.02(2) A person effecting personal service 0f a document need not produce the original document 0r have it in his 0r her possession. Amendment History O. Reg. 465/93, s. 3; 69/95, ss. 6, 19, 20; 536/96, s. 2; 575/07, ss. 1, item 10, 16; 316/20, s. 1; 107/21, s. 1 Currency Ontario Current t0 S.O. 2021, c. 17 and O. Reg. 373/21 (June 5, 2021) Concordance References Rules Concordance 16, Personal service End of Document Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. WEStlaWNEXtrC-AW Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). A|| rights reserved. 2 EXHIBIT 12 GUIDELINES FOR COMPLETING THE MODEL FORM These guidelines will help you complete the Model Form annexed t0 the Hague Coflvwlz'on of 75 November 7965 on the Semite Abroad (y’fudm'zzl and Exmy'udz'a'al Document: z'n Civil 0r CommercialMaflerx. The Model Form is comprised of three (3) parts: Part 1 - Part 2 - Part 3 - Request Certificate Summary + Warning \X/hich parts to complete? If you are using If you are using the main cbamze/ oftrammz'xsz'on. .. an alternative channel tftmmmz'm'ofl. .. 9 9 The use 0f the Model Form is mamiaz‘ool. The use of the Model Form is recommended (but not mandatory). Complete Part 1 (Request) and Part 3 (Summary + Complete Part 3 Mg; (Summary + Warning). Warning). The use 0f the Warning is recommended (but not mandatory) Do mt complete Part 2, Which Will be completed later by D0 not complete Part 1 and Part 2. the Central Authorigz or other competent authority in the requested State. Choosing a bilingual 0r trilingual Model Form: The Permanent Bureau has developed several bilingual and trilingual fillable forms in both Word and PDF formats, which can be easily completed and saved (available on the Service Section 0f the Hague Conference website (< www.hcch.net >)). Check if there is a bilingual or trilingual form that would suit your needs. In the absence 0f a trilingual form in the desired language, use the bilingual forms (English/French or French/English). Filling out the fields: Complete the Model Form electronically using a word processor. Use plain, understandable language and avoid unnecessary legal 0r technical language. D0 not change or rearrange the items in the Model Form. Write out dates in full (e.g., ljanuary 2014). If a particular item does not apply, insert “not applicable” or “n/a” 0r otherwise indicate that this item is not applicable. The notes accompanying this form provide further informadon on filling out each field. Language: The fields in the Model Form must be filled out in English, French, or (one of) the official language(s) of the requested State (Art. 7(2)). Copies: Part 1 of the Model Form (Request for service) and the document to be served must be furnished in dup/imte (Art. 3(2)), except if service is made in electronic form. No legalisation: The Request does not need t0 be legalised (or apostillised) (Art. 3(1)). This exemption also applies to the documents t0 be served. Translation of the documents to be served: The requested State may require that the documents t0 be served be translated into (one 0f) its official language(s) (Art. 5(3)). To find out the requirements 0f the requested State, check the practical information chart for that State or contact the Central Authorigz of that State. Costs: Although services rendered by the Central Authorigz are free of charge, you may be required to reimburse the costs occasioned by the employment of a judicial officer or other competent person to effect service, or for the use of a particular method of service requested by you (Art. 12(2)). To find out whether service in the reguested State gives rise to these costs, and whether the reguested State requires reimbursement of them, check the practical information chart for that State. Terminology: In this Form: App/imm‘ means the forwarding authorigz (see below). Centra/Aufbmy means the authority designated by a Contracting State to receive requests for service from the requesting State and t0 execute them 0r cause them to be executed. CdVR ofl/Je SC refers t0 the Conclusions & Recommendations 0f the Special Commission. Convention means the Hagzle Convention of75 November 7965 (m the SemkeAbmad ojrjua’z‘cz‘alMdExtraj'uditia/ Document: in Cz'w'l or Commertia/Maflerx, the full text of which is available 0n the Service Section 0f the Hague Conference website. Forwarding aulbon'gy means the authority 0r judicial officer competent under the law of the requesting State to forward requests for service t0 the Central Authorigz 0f the requested State. Hague Confemm on Private InternationalLaw (0r Hague Conference) means the intergovernmental organisation under Whose auspices the Convention was negotiated and adopted. Model Form means the form annexed to the Service Convention. Pmmm/ information chart means the chart for a given Contracting State, which is available on the Service Section 0f the Hague Conference website under “Central and other Authorities”. Requm‘ed Sizzle means the State to which the request for service is addressed. Requem‘ng dummy means the forwarding authorigg (see above). Reqmm‘flg State means the State from which the request for service is issued. Further information: For further information 0n serving documents abroad under the Convention, visit the Service Section of Hague Conference website, at < www.hcch.net >. NOTES ON THE MODEL FORM Note 1: T116 blanks 0fthe Model Fotm must be filled out in English 01' 1'11 French or in the language of tlzc requested State. Note 2: Where service 1's t0 be effected 011 multiplepctsons, a separate request 1'01 service mayneed to be issued for eachperson. [fin doubt, contact the CentraIAutIzotity oftbe requested State to check Whether separate Requests for Service are needed. NOTES ON PART 1 - REQUEST Item 1: The name of the plaintiff, or of the counsel representing the plaintiff (when different from the forwarding authorigl), should not be included in this box. A current list of forwarding authorities is available 0n the Service Section. Item 2: A comprehensive and updated list 0f contact details of Central Authorities is available on the Service Section. Item 3: Fill out this field mrefu/bl. The Convention does not apply if the address of the person t0 be served with the document is not known (Art. 1(2)). Where available, insert the addressee’s date of birth (C&R No 30 0f the 2009 SC). For Requests addressed t0 Contracting States that use a writing system other than the Latin alphabet, it might also be helpful t0 include the name and address of the recipient in (one of) the official language(s) 0f that State. Option a): Select this option (by checking the corresponding box) if you would like the documents t0 be served by a method prescribed by the internal law of the requested State (formal service) and chosen by that State. The most common methods of service are personal service or service by post. Costs may be incurred if a judicial officer or a person competent under the law of the State of destination is employed to effect service (Art. 12(2) (21)). Option b): Select this option (by checking the corresponding box) if you would like the documents to be served by a particular method. Describe the specific method requested in the field. Note that costs may be incurred when a particular method is chosen (Art. 12(2) (b)). Option c): Select this option (by checking the corresponding box) if you would like the documents t0 be served by delivery t0 an addressee who accepts it voluntarily (informal delivery). The available methods of effecting informal delivery vary among Contracting States and may include postal service, personal service in court in response to summons t0 attend for service, or service by procedural agents or police. NOTES ON PART 2 - CERTIFICATE Note 1: The Certificate 1's t0 be completed by the Central Authority 01‘ other competent autbon'ty oftbc requested State (Art. 6). As such, the forwarding autbon'gy shouldleave the Certificate blank. Note 2: Properly completed Certificates should be tetumed to the forwarding autbon'gy (C&R N0 26 of the 2014 SC). The Certificate contemplates two main options depending on whether 0r not the documents have been served: Option 1: Select this option (by checking the corresponding box) if the documents have been served and proceed t0 answer items 1-4. Option 2: Select this option (by checking the corresponding box) if the documents have not been served and proceed to answer item 5. Do not complete items 1-4. Item 1: The date 0f service is important t0 both plaintiff and defendant. Write out the date in full. Item 2: The place where service has occurred should be indicated here. If your State uses a writing system other than the Latin alphabet, it might also be helpful t0 include the address in the Latin alphabet if this is used in the requesting State. Option a): Select this option (by checking the corresponding box) if the documents have been served by a method prescribed by the internal law 0f your State (formal service). Specify the provisions in the law 0f your State under which service was effected 0r include them by way of an attachment (C&R No 30 of the 2009 SC). Option b): Select this option (by checking the corresponding box) if the documents have been served by a particular method requested by the forwarding authorigg. If necessary, describe the specific method requested in this field. Option c): Select this option (by checking the corresponding box) if the documents have been served by delivery to an addressee who accepts them voluntarily (informal delivery). Item 5: The facts/reasons why service failed are of great importance, because they will determine the course of action that the plaintiff/court will take. Where the defendant cannot be physically located, some States proceed to effect substituted service (e.g., service by publication or by electronic means). Indicate in this field if the address 0f the defendant was no longer valid, fictitious or incorrect, or if the defendant could not otherwise be found. If informal delivery was attempted, specify if service failed because the defendant did not accept the documents voluntarily. Item on costs: The requested State may require the forwarding authorigz to pay the costs associated with effecting service whether or not the document has been served in accordance With Article 12(2) of the Convention. Select this option if any costs need to be reimbursed and attach a statement with a breakdown of such costs if need be. NOTES ON PART 3 - SUMMARY + WARNING Forthe Warning Item 1: When the document is not sent t0 0r served upon the addressee in his 0r her private capacity, the addressee should be informed that he or she is receiving it in an alternative capacity (c.g., as director 0f a company, tutor, representative 0f an estate, trustee, receiver in bankruptcy, etc). Item 2: Examples 0f authorities 0r organisations that may be qualified to give details on the availability oflegal aid 0r advice include the court seised, legal aid bureau, or law society. For the Summary Note: The Summazy distinguishes between judicial documents and extrajudicial documents. Any document relating t0 litigation, including summazy proceedings or uncontested proceedings, e.g., summons, judgment, order or application, is regarded as a judicial document. Any other legal document 1's to be classified as an extrajudicial document. Item 3: If you are using an alternative channel oftrammz'xsz'ofl, insert the name, address, telephone number and e-mail address of the authority 0r person who caused the document to be issued. Item 4: Where an exmy'udz'mz/ document is concerned, the name and address 0f the person interested in the transmission 0f the document should be indicated. In the case 0f a judgment, the names of the person/party entitled t0 the judgment, and the person/party against whom the judgment is rendered, should be entered. For requests to serve judicial documents Item 5: The nature andpu¢we oftbe document refers to the legal classification 0f the document, for example, writ 0f summons, judgment, order, etc. A brief summary 0f the contents 0f the document (e.g., claim or judgment for divorce, alimony or maintenance, 0r for damages) falls under the “purpose of the document”. When the document relates to legal proceedings, the reference t0 the purpose of the document may be expressed very briefly, since the nature and purpose of the proceedings will be described more in detail under item 6. Item 6: Under this item, the remedy or relief sought by the claimant should be mentioned more in detail than under the preceding item. Thus, for instance, when a sum of money is claimed, the exact sum should be mentioned as well as, where appropriate, a brief description of the grounds for the claim. Item 7: If the recipient Who is to take action on the document sent 0r served abroad is required t0 enter an appearance before a court 0r an authority, the exact date and place for entering the appearance should be mentioned under this item. If possible, it may be appropriate to mention the qualifications which are required for representation (3g, a lawyer authorised by the court concerned). If there is no need for the recipient to enter appearance, insert “not applicable” or “n/a” or otherwise indicate that this item is not applicable. Items 8 and 9: In some cases it may be appropriate to mention the addrm of the court, e.g., when the judgment is a default judgment and the person against whom the judgment was entered has the possibility to apply t0 that court for the re-opening of the judgment 0n the grounds of default. If n0 judgment has been rendered, insert “not applicable” 0r “n/a” or otherwise indicate that this item is not applicable. Item 10: Any time-lirnit stated in the document for the institution of legal proceedings, or review 0f a judgment or a decision, should be mentioned under this item. If there are n0 time-limits in the document, insert “not applicable” or “n/a” or otherwise indicate that this item is not applicable. For requests to serve extrajudicial documents Item 11: The nature andpuqmse offbe document refers t0 the legal classification 0f the document. Item 12: If there are n0 time-limits in the document, insert “not applicable” or “n/a”, 0r otherwise indicate that this item is not applicable.