IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
March 30, 2011
LEISA SMITH, PLAINTIFF
SANDHU DALJIT SINGH, 3620981 CANADA, INC. DEFENDANTS
The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiff, Leisa Smith, filed this action to recover for personal injuries suffered in a vehicle accident at a truck stop in Lebanon County, Pennsylvania. Defendants, Sandhu Daljit Singh and 3620981 Canada Inc., have filed a motion under Fed. R. Civ. P. 12(b)(5) to vacate Plaintiff's service of process. Defendants are located in Quebec, Canada, and service was made by international registered mail. Defendants argue that this form of service violated the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents (the Hague Convention), which required Plaintiff to first send her complaint to the Central Authority for Quebec for service by a sheriff (or huissier), or use a sheriff in the first instance to serve the complaint.
We agree with Plaintiff that registered mail was a proper form of service and will deny the motion.
On November 8, 2010, Plaintiff filed suit in the Court of Common Pleas of Lebanon County, Pennsylvania. She alleges she is a resident of Washington State, (Compl. ¶ 1), and that defendant, Sandhu Daljit Singh, is a resident of Dollard Des Ormeaux, Quebec, Canada. (Id. ¶ 2). She alleges that the other defendant, 3620981 Canada Inc., is a business corporation providing transportation services and has a registered office address in the care of Shangara Singh Sidhu, also in Dollard Des Ormeaux, Quebec. (Id. ¶ 3). Ths street address in Dollard Des Ormeaux for the individual defendant and for the corporate defendant is the same. (Id. ¶¶ 2 and 3).
Plaintiff avers that on December 21, 2008, she was injured by the negligence of Sandhu Daljit Singh when he drove his tractor-trailer into her tractor-trailer at a truck stop in Lebanon County. (Id. ¶¶ 4-7, 9). She has sued the individual defendant and the corporate defendant, alleging that the latter is liable under respondeat superior because the defendant operator was acting in the course and scope of his employment with 3620981 Canada Inc. at the time of the accident. (Id. ¶ 18).
To effect service, Plaintiff used international registered mail. In her opposition to the motion to vacate, Plaintiff attaches copies of the return receipts. They indicate that on November 10, 2010, separate mailings were made for each defendant at the Dollard Des Ormeaux address, one addressed to Sandhu Daljit Singh and the other to 3620981 Canada Inc. "c/o of Shangara Singh Sadhu." (Doc. 6-1, Pl.'s Opp'n, Ex. A, CM/ECF p. 2).*fn1 The person who signed for the complaints on November 23, 2010, used only initials. However, those are the initials of Sandhu Daljit Singh since Defendants admit in their motion to vacate that the individual defendant "was sent via registered mail on November 10, 2010 a copy of plaintiff's complaint," (doc. 4. Mot. to Vacate ¶ 3), and attach to their motion an identical copy of the return receipt Plaintiff has supplied.*fn2
On February 17, 2011, Defendants filed their notice of removal, asserting our diversity jurisdiction under 28 U.S.C. § 1332(a)(2).
Defendants move to vacate service of process, arguing that service by registered mail violated the Hague Convention. According to Defendants, the Hague Convention required Plaintiff to first send her complaint to the Central Authority for Quebec for service by a sheriff (or huissier), or use a sheriff in the first instance to serve the complaint.
Both the United States and Canada are signatories to the Hague Convention. Mitchell v. Theriault, 516 F. Supp. 2d 450, 452 (M.D. Pa. 2007). The Convention requires that contracting states establish a central authority "to receive requests for service coming from other contracting States." Id. The central authority then arranges for service of the documents. Id. "Service of process abroad is controlled by the Hague Convention, to the extent that the convention applies." Id. (citing Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705, 108 S.Ct. 2104, 2111, 100 L.Ed.2d 722 (1988)).
However, as Plaintiff points out, the Convention does not require a party to use a central authority if a contracting state does not object to service by mail. Article 10(a) of the Convention reads:
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.
Fed. R. Civ. P. 4 (West 2011 Ed.)(attached as an appendix). Canada does not object to the use of postal channels to serve documents. (Website of the Quebec Department of Justice, http://www.justice.gouv.qc.ca./english/programmes/sneaje/transmission-a.htm)(noting that "Canada did not declare any opposition when it ratified the Convention" to "other methods of transmitting documents," describing those methods as including "postal service"). The Convention therefore permitted Plaintiff to use the mails to serve Defendants. See Brockmeyer v. May, 383 F.3d 798, 803 (9th Cir. 2004).*fn3
Article 10(a) is not affirmative authority for serving by mail. But see Ackerman v. Levine, 788 F.2d 830, 838-39 (2d Cir. 1986); Rogers v. Kasahara, No. 06-2033, 2006 WL 6312904, at *4 (D.N.J. Oct. 16, 2006). It merely provides that the Convention does not interfere with service by mail for those states that do not object to that method of service. Brockmeyer, 383 F.3d at 803-04. A plaintiff must therefore also show that the manner in which service by mail was made was authorized by the law of the forum state. Id. at 804 ("Any affirmative authorization of service by international mail, and any requirements as to how that service is to be accomplished, must come from the law of the forum in which the suit is filed.").
The instant case was filed in state court, and service was purportedly accomplished before Defendants removed it here. We therefore look to the law of Pennsylvania, the forum where the suit was filed, to determine if service by registered mail was valid. Id.; Conax Florida Corp. v. Astrium Ltd., 499 F. Supp. 2d 1287, 1293 (M.D. Fla. 2007)(in a removed action, determining that service by certified mail on a company in the United Kingdom was proper by looking to Florida service rules). See also Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir. 2010)("federal courts in removed cases look to the law of the forum state . . . to determine whether service of process was perfected prior to removal"). But see Mitchell, supra, 516 F. Supp. 2d at 455 (in a removed action, looking to the law of the United States as the forum).
In looking to Pennsylvania law, we agree with Plaintiff that service was properly made under Pa. R. Civ. P. 403 and 404. Rule 404(2) permits service outside Pennsylvania "by mail in the manner provided by Rule 403." Alternatively, Rule 404(4) permits service "in the manner provided by treaty." Rule 403 requires that service by mail be accomplished by mailing "a copy of the process . . . to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent." This form of service may be used on corporations. See Jordan v. SEPTA, 708 A.2d 150, 153 (Pa. Commw. 1998)(upholding service of process on a Japanese corporation in Japan by certified mail under the Hague Convention and citing the Pennsylvania long-arm statute, 42 Pa. Con. St. § 5323(a)(3), which allows service by mail requiring a signed receipt); Willis v. Magic Power Co., No. 10-4275, 2011 WL 66017, at *4 (E.D. Pa. Jan. 7, 2011)(finding service of process on a Chinese corporation in Hong Kong by certified mail proper under the Hague Convention, Pa. R. Civ. P. 403, and Pennsylvania's long-arm statute).
Defendants' argument that service had to go through the Quebec Central Authority is partially based on a chart in an American Bar Association publication dealing with service of process under the Hague Convention for Canada. This publication asserts that "[s]ervice must be effected according to methods prescribed by each province." (Doc. 4-4, CM/ECF p. 3). Defendants argue from this that Canada "may not have objected to service by way of certified mail as a country," but deferred to the individual provinces for requirements for service within that province. (Doc. 7, Reply Br. at CM/ECF p. 2). Defendants add that the chart also says that "[n]ormally" service in Quebec is performed by the sheriff or huissier." (Doc. 4-4, CM/ECF p. 3). We reject this argument. The chart "does not specifically say that service by mail is prohibited in Quebec." Mitchell, supra, 516 F. Supp. 2d at 456. Additionally, the Quebec Department of Justice acknowledges "other methods of transmission" other than through the Central Authority, (Website of the Quebec Department of Justice, http://www.justice.gouv. qc.ca./english/programmes/sneaje/sneaje-a.htm), which as noted above includes "postal service."
We recognize that a plaintiff has the burden of establishing that service was proper, Jones v. Hous. Auth., No. 08-5772, 2010 WL 1492904, at *2 (D.N.J. April 14, 2010), and service on the corporate defendant here was made when the individual defendant, Sandhu Daljit Singh, signed for its copy of the complaint, not the apparently proper corporate agent, Shangara Singh Sadhu. However, Defendants do not assert that the individual defendant is not an "authorized agent" for the purpose of accepting service under Rule 403. Their only complaint about service is that registered mail was used. Hence we conclude that service on the corporate defendant was effective when Sandhu Daljit Singh signed for it. See Kachmarski v. Dakota Bodies, Inc., No. 10-4499, 2010 WL 4910891, at *2 (E.D. Pa. Nov. 30, 2010)(no apparent requirement in Pennsylvania that the person signing the return receipt indicate that she was an authorized agent within the meaning of Rule 403 and finding service proper when there was no assertion that she was not such an agent).
We will issue an appropriate order.
William W. Caldwell
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LEISA SMITH, Plaintiff v. SANDHU DALJIT SINGH, 3620981 CANADA, INC. Defendants
CIVIL NO. 1:CV-11-0322
AND NOW, this 30th day of March, 2011, it is ordered that Defendants' motion (doc. 4) to vacate service of process is denied.
William W. Caldwell
William W. Caldwell United States District Judge