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Dominic v. Hess Oil V.I. Corp.

filed: March 10, 1988.

LEONARD DOMINIC
v.
HESS OIL V.I. CORP. HESS OIL V.I. CORP., DEFT. THIRD PARTY PLAINTIFF V. COMMUNICATIONS SYSTEMS & MAINTENANCE CORP., THIRD PARTY DEFENDANT. THE SHELL COMPANY (PUERTO RICO) LTD., APPELLANT



Appeal from the United States District Court for the District of the Virgin Islands - St. Croix, D.C. Civil No. 84-0202.

Gibbons, Chief Judge, and Stapleton and Mansmann, Circuit Judges.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

In this personal injury/products liability action the defendant Shell Company raises numerous issues in its effort to reverse a jury award in favor of the plaintiff Leonard Dominic. We find no merit in Shell's contentions and will affirm the entry of judgment on the verdict. We write specially on the issue of service of process because we find that the district court did not abuse its discretion by permitting Dominic additional time in which to complete service of process We will reverse on the sole issue of the award of expert witness fees.

I.

Leonard Dominic was employed for approximately one week at the Hess Oil Virgin Islands Refinery. His job at the refinery was to clean outdoor pipes with a solvent called methyl ethyl ketone ("MEK"). After several days' labor, Dominic alleged that he became ill from the solvent, lost consciousness and suffered neurological damage and/or post-traumatic stress disorder due to these events. The solvent was supplied to Hess Oil Virgin Islands by the Shell Company.

Dominic filed a complaint against Hess Oil which was later amended to assert his claim against the Shell Company. He then settled his differences with Hess Oil and proceeded to trial against Shell. A jury awarded Dominic $575,000, of which 85% or $488,780 was attributable to Shell, and judgment was entered in that amount.

On this appeal, Shell raises a number of issues including procedural problems regarding service of process and more substantive concerns regarding Shell's demand for a judgment n.o.v., requested jury instructions, admission of expert witness testimony and other evidence, alleged error regarding the Restatement of Torts (Second) ยง 402(A) claim, and the granting of the plaintiff's motion for expert witness fees. We perceive no merit in the majority of these and reject them without textual discussion.*fn1 We address here only the issues concerning service of process and the expert witness fees.

II.

Shell asserts as error the district court's denial of its motion to dismiss based on insufficiency of process and insufficiency of service of process. We will affirm the district court's denial of this motion. We write here to note our affirmance in view of the district court's discretion in this matter.

When Dominic first filed his complaint against Hess Oil on July 9, 1984, he named a John Doe Corporation as co-defendant, on grounds of strict liability. Hess Oil cross-claimed against Shell in April, 1985 on an indemnity agreement and Dominic was granted leave on April 25, 1985, to substitute Shell for the John Doe Corporation. Dominic then filed an amended complaint on May 2, 1985, which was served on Shell by certified mail on May 24, 1985, without summons or complaint.

In response Shell filed a Motion to Dismiss based on insufficiency of process and insufficiency of service of process based on Dominic's failure to serve Shell properly with the summons or copies of a notice and acknowledgement conforming to Fed. R. Civ. P.4(c)(2)(C)(ii).*fn2 That rule requires the service of both summons and complaint, together with proper acknowledgement forms, to be mailed to the person to be served. Shell argued as well that the service was in violation of Fed. R. Civ. P.4(j).*fn3 regarding the 120 day time limit for service. In conjunction with the Motion to Dismiss, Shell submitted the affidavit of Francisco A. Forteza, the Managing Director of Shell, and its designated agent for service of process. The affidavit confirmed that Shell had received Dominic's amended complaint on May 24, 1985. While agreeing that service was deficient as required under Rule 4, the district court nonetheless granted Dominic the opportunity to show cause why the complaint should not be dismissed.

Dominic responded by arguing that once Hess Oil had brought Shell in as a third party defendant under Fed.R.Civ.P.14, Dominic's service of an amended complaint upon Shell was all that was necessary to effectuate the assertion of a claim over a third party defendant. Dominic asserted that prior to service of the amended complaint, Shell was already ...


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