IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
January 7, 2011
MAGIC POWER CO., LTD, ET AL.
The opinion of the court was delivered by: Ludwig, J.
By order of December 21, 2010, this action was remanded to the Court of Common Pleas of Philadelphia County because the removal notice of defendant Magic Power Co., LTD was untimely. Jurisdiction is diversity. 28 U.S.C. §§ 1332(a)(3); 1441(a). This memorandum is intended to explain the remand order.
On October 16, 2009, plaintiff Curtistine Willis began this personal
injury action by filing a complaint in the Philadelphia Court of
Common Pleas against defendants Magic Power and Sears Holdings Corp.
On November 17, 2009, the complaint, which was sent by United States
registered mail, was received by Magic Power in Hong Kong.*fn1
On December 22, 2009, Magic Power filed preliminary
objections challenging venue and disputing service of process by mail
under the Hague Service Convention.*fn2 On January 11,
2010, plaintiff filed an amended complaint, aimed at curing the venue objection, and
this pleading was again sent to Magic Power in Hong Kong by registered
mail. On January 25, 2010, Magic Power filed preliminary objections
renewing its position that service by mail was ineffective. On April
26, 2010, the C. P. court overruled the preliminary objections, and on
August 23, 2010, Magic Power filed its removal notice to this court,
to which Sears consented.
On September 9, 2010, plaintiff moved to remand the action on the ground that Magic Power had been served more than nine months before the filing of the removal notice.*fn3 In plaintiff's view, service was effective because Pa. R.C.P. 403, 404, and 424 and the long-arm statute Pa.C.S.A. § 5323(a)(3), as well as Article 10(a) of the Hague Service Convention, permit service of process by mail. According to plaintiff, the People's Republic of China, of which Hong Kong is a special administrative region, has not objected to use of this method of service in Hong Kong.
Defendant Magic Power does not dispute receipt of the original complaint on November 17, 2009. It contests the method of service - i.e. by mail. Its position is that the People's Republic of China has objected under the Hague Service Convention to service of process by mail in Hong Kong. See defendant Magic Power's preliminary objections to plaintiff's original complaint, doc. no. 1-1 at 25-26, 28-29, and preliminary objections to plaintiff's amended complaint, doc. no. 1-2 at 10-13. In response to plaintiff's motion to remand, Magic Power argues that the Hague Service Convention, as acceded to by China, required plaintiff to forward the complaint and the amended complaint to China's designated central authority, which would arrange for service by an appropriate agency. Magic Power posited that since it had not been formally served, the 30-day period for removal had not begun and, therefore, Magic Power's removal notice was not untimely.
"Removal is a statutory right, and the procedures to effect removal must be followed." Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985). The statute specifies that the removal notice "shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading." 28 U.S.C. § 1446(b). A defendant must be officially summoned to appear in order for the removal period to begin. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 354-55 (1999) ("defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, 'through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service").
Pennsylvania's Rules of Civil Procedure and long-arm statute authorize service of process by registered mail, return receipt requested, under the circumstances here.*fn4 See Richman, Berenbaum & Assoc., P.C. v. Carolina Cas. Co., No. 02-3195, 2002 WL 1895900, at *6 n.4 (E.D. Pa. Aug. 14, 2002) (courts have interpreted service by mail under Pa. R.C.P. 403 as proper service on out-of-state corporations under Pa. R.C.P. 424).
It is also undisputed that the Hague Service Convention is applicable here. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988) (the Convention applies when the forum state's internal law requires transmittal of documents abroad as a necessary part of service of process); DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3d Cir. 1981) (the Convention "provides a mechanism by which a plaintiff authorized to serve process under the laws of its country can effect service that will give appropriate notice to the party being served and will not be objectionable to the country in which that party is served" and "applies to persons desiring to make service in state-court proceedings"). The Hague Service Convention requires each country to establish a central authority to receive requests for service of documents from other countries. Volkswagenwerk, 486 U.S. at 698. A country may also consent to methods of service within its boundaries other than a request to its central authority. Id. at 699.
The Hague Service Convention was extended to Hong Kong by the United Kingdom on May 20, 1970, and became effective as to Hong Kong on July 19, 1970.*fn5 On May 6, 1991, the People's Republic of China acceded to the Hague Service Convention, effective January 1, 1992.*fn6 On June 10, 1997, China notified the Netherlands government, the official depository for the Hague Convention, that upon transfer of Hong Kong's sovereignty to China, the Hague Service Convention would continue to be applicable to Hong Kong.*fn7 Effective July 1, 1997, China became the sovereign of Hong Kong.*fn8
There are two views concerning the proper interpretation of Article 10(a) of the Hague Service Convention, which states: "Provided the State of destination does not object, the present Convention shall not interfere with . . . the freedom to send judicial documents by postal channels, directly to persons abroad." Some courts and commentators have concluded that Article 10(a) applies only to documents transmitted after service of original process because the article uses the word "send" rather than "service." See, e.g., Nuovo Pignone SpA v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir. 2002); Bankston v. Toyota Motor Corp., 889 F.2d 172, 173-74 (8th Cir. 1989). Other courts and commentators have considered the use of "send" to be "careless drafting," and have found that Article 10(a) permits service of process by mail. See, e.g., Ackermann v. Levine, 788 F.2d 830, 839 (2d Cir. 1986) (quoting 1 Bruno A. Ristau, INTERNATIONAL JUDICIAL ASSISTANCE (CIVIL AND COMMERCIAL), § 4-28, at 165-67 (1984)). Our Court of Appeals has not ruled on the scope of Article 10(a).
Most of the jurisdictions to have decided this issue have determined that Article 10(a) contemplates service of process on foreign defendants by mail if permitted by the receiving country, without going through that country's central authority. See, e.g., id. at 838-39; The Knit With v. Knitting Fever, Inc., No. 08-4221, 08-4775, 2010 WL 2788203, at *7 (E.D. Pa. July 13, 2010); Mitchell v. Theriault, 516 F. Supp. 2d 450, 455 (M.D. Pa. 2007). Pennsylvania law is in accord. Also see Jordan v. SEPTA, 708 A.2d 150, 152 (Pa. Commw. Ct. 1998) (service by certified mail on a corporation in Japan was proper under Pa. R.C.P. 404(4) and Article 10(a)); Sandoval v. Honda Motor Co., Ltd., 527 A.2d 564, 566 (Pa. Super. Ct. 1987) (service by certified mail on a corporation in Japan was proper because Japan had not objected to Article 10(a)).
Magic Power relies on the People's Republic of China's objection to the entirety of the Convention's Article 10,*fn9 which it contends negates service of documents by use of "postal channels" as set forth in Article 10(a). However, China did not object to service of process by mail in Hong Kong under Article 10(a). On June 10, 1997, China notified the Netherlands depository that with respect to Hong Kong it was objecting only to Articles 10(b) and 10(c); the notice was silent as to Article 10(a):
With reference to the provisions of Sub-paragraphs (b) and (c) of Article 10 of the Convention, documents sent for service through official channels will be accepted in the Hong Kong Special Administrative Region only by the Central Authority or Other Authority designated, and only from judicial consular or diplomatic officers of other Contracting States.
Denlinger v. Chinadotcom Corp., 2 Cal. Rptr. 3d 530, 538 (Cal. Ct. App. 2003) (quoting China's declaration).*fn10 Furthermore, other courts have approved service of process by mail in Hong Kong under Article 10(a). See TracFone Wireless, Inc. v. Bequator Corp., Ltd., 717 F. Supp. 2d 1307, 1309 (S.D. Fla. 2010) (Hong Kong does not object to judicial documents being sent by postal channels under Article 10(a)); Silver Top Ltd. v. Monterey Indus. Ltd., No. 94-5731, 1995 WL 70599, at *2 (S.D.N.Y. 1995) (service of process by registered mail to Hong Kong defendants was an appropriate method of service under the Convention); Hayes v. Evergo Tel. Co., Ltd., 397 S.E.2d 325, 328 (N.C. Ct. App. 1990) (service of process by international mail conformed with the Convention and "Hong Kong has not objected to any portion of Article 10 and apparently the internal law of Hong Kong permits service of process through the mail.").*fn11
The strong weight of authority is in accord with plaintiff's view. See The Knit With, 2010 WL 2788203, at *6-7, *7 (Buckwalter, J.) ("In short, although the issue is far from settled, a large number of courts within the Third Circuit, a majority of the courts outside the Third Circuit, the drafters of the Hague Convention, the United States Government, and other signatory countries have all adopted the position that Article 10(a) permits international service by mail."). Neither the People's Republic of China nor Hong Kong has objected under the Hague Service Convention to service of process by mail in Hong Kong.
Plaintiff completed service of her initial pleading in accordance with Pennsylvania's Rules of Civil Procedure and long-arm statute, and Article 10(a) of the Hague Service Convention, as acceded to and implemented by China in Hong Kong. The removal period began upon Magic Power's actual receipt of the complaint on November 17, 2009. Because Magic Power filed its notice of removal more than nine months later on August 23, 2010, the removal was untimely under 28 U.S.C. § 1446(b). Accordingly, this action was remanded to the Philadelphia Court of Common Pleas.
BY THE COURT:
Edmund V. Ludwig, J.