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Mitchell v. Theriault

October 12, 2007

RICHARD MITCHELL AND DEBORAH TRUBELA, H/W, PLAINTIFFS,
v.
SEBASTIEN THERIAULT AND RIP-O-BEC, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

MEMORANDUM

Before me is the Motion to Vacate Service of Process pursuant to Federal Rule of Civil Procedure 12(b)(5) (Doc. 3). The Defendants in this removal case, Sebastian Theriault and Rip-O-Bec, Inc., seek to have the service that was made on them by registered mail on November 7, 2006 quashed because it violates the Hague Convention. Because Plaintiffs' method of service on Defendant Rip-O-Bec, Inc., was not proper but its service on Defendant Theriault was proper, Defendants' motion will be granted in part and denied in part.

BACKGROUND

Plaintiffs Richard Mitchell and Deborah Trubela, husband and wife, filed their Complaint (Doc. 3-3) in the Luzerne County Court of Common Pleas. The Complaint alleged that the Defendants, Sebastien Theriault, who resides in Quebec, Canada, and Rip-O-Bec, Inc., which has its principal place of business in Quebec, Canada, negligently injured Plaintiffs in an automobile accident. (Compl., Doc. 3-3.) Plaintiffs sent a copy of their Complaint to each Defendant by registered mail on November 7, 2006, and Plaintiffs received signed service cards for each Defendant. (Pls.' Mem. in Opp'n, Doc. 6, at 1.) On July 10, 2007, the case was removed to this Court. (See Doc. 1). Defendants now move to quash service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). (Doc. 3.) This motion is fully briefed and ripe for disposition.

LEGAL STANDARD

Rule 12(b)(5) of the Federal Rules of Civil Procedure permits a motion to dismiss for "insufficiency of service of process." Fed. R. Civ. P. 12(b)(5). In such a motion, "the party asserting the validity of service bears the burden of proof on that issue." Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993).

DISCUSSION

I. Does the Hague Convention Prohibit Service by Mail?

Service upon individuals in a foreign country and corporations not found within the United States must be made by "any internationally agreed means of service that is reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents." Fed. R. Civ. P. 4(f)(1) and 4(h)(2). Service of process abroad is controlled by the Hague Convention, to the extent that the convention applies. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988) ("[C]compliance with the Convention is mandatory in all cases to which it applies."). Both parties agree that Canada is a signatory to the Hague Convention and has been since 1989. That Convention provides that each party to the Convention shall designate a Central Authority to receive requests for service coming from other contracting States. Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters [hereinafter Hague Convention] art. 2, Entered into Force for the United States, Feb. 10, 1969, 20 U.S.T. 361, 658 U.N.T.S. 163. The Convention provides that the documents shall be forwarded to the Central Authority of the State receiving the process, which will then serve the document itself or 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.

Id. arts. 3, 5.

Defendants argue that because Plaintiffs' method of service, sending the Complaint directly by registered mail, fails to comply with this framework, service was improper and should be set aside. (Mem. in Supp. of Defs.' Mot. to Vacate, Doc. 4, at 3.) But Plaintiffs, who bear the burden of establishing that service was proper, point to Article 10(a) of the Convention, which states:

Provided the State of designation does not object, the present Convention shall not interfere with --

(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.

Hague Convention, art. 10(a). As Canada has not formally objected to Article 10(a), Plaintiffs maintain that service by direct registered mail was proper. They cite Pennsylvania state cases in support of this proposition, but "a state court's interpretation of a federal treaty is not binding on a federal court, even if the federal court's jurisdiction is based on ...


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