Howard v. Krull

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JORDAN HOWARD, CIVIL DOCKET

Plaintiff

VERSUS NO. 19-12501

SANDRA KRULL, ET AL., SECTION: “E” (2)

Defendants

ORDER AND REASONS

Before the Court is a Motion to Dismiss for Insufficient Service of Process filed by

Defendant Sandra Krull pursuant to Federal Rule of Civil Procedure 12(b)(5).1 Plaintiff

opposes the motion.2 Krull filed a reply.3

BACKGROUND

On July 23, 2019, Plaintiff filed a petition for damages against Defendants Krull,

EAN Holdings, LLC, and Ace American Insurance Company in the 40th Judicial District

Court for the Parish of St. John the Baptist.4 The petition alleges Krull, a resident of

Germany, failed to yield while exiting a private driveway and caused a collision with

Plaintiff’s vehicle.5

Defendant Ace American Insurance Company timely removed this matter to this

Court on September 9, 2019.6 On December 13, 2019, the Court issued a Show Cause

Order requiring Plaintiff to show cause why Krull had not been served.7 On December 30,

2019, Plaintiff filed a response claiming that, on October 30, 2019, Plaintiff served Krull

1 R. Doc. 12.

2 R. Doc. 13.

3 R. Doc. 18.

4 R. Doc. 1-2.

5 Id. at 2–3.

6 R. Doc. 1.

7 R. Doc. 6.

via service on the Louisiana Secretary of State pursuant to Louisiana Revised Statute §

13:34758 On January 2, 2020, Plaintiff filed a motion for enlargement of time to mail the

petition to Krull as required by Louisiana Revised Statute § 13:3575.9 On January 7, 2020,

the Court granted Plaintiff’s motion.10 On January 16, 2020, Plaintiff again attempted to

serve Krull by issuing a summons to the Louisiana Secretary of State.11 Defendant Krull

now moves to dismiss Plaintiff’s claims against her based on insufficient service of

process.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim if service

of process is not completed in the proper manner. Service is not completed in the proper

manner if not made in compliance with the requirements of Rule 4.12 “In the absence of

valid service of process, proceedings against a party are void.”13 Because Krull objects to

the legal sufficiency of the service of process, Plaintiff has the burden of demonstrating

by a preponderance of the evidence the validity of service.14 “The district court enjoys a

broad discretion in determining whether to dismiss an action for ineffective service of

process.”15

LAW AND ANALYSIS

Federal Rule of Civil Procedure 4(f)(1) provides that an individual may be served

outside of the United States “by any internationally agreed means of service that is

8 R. Doc. 7.

9 R. Doc. 8.

10 R. Doc. 9.

11 R. Doc. 10; R. Doc. 11.

12 Fed. R. Civ. P. 4.

13 Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, 635 F.2d 434, 435 (5th Cir. 1981).

14 Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992).

15 George v. United States Dep't of Labor, 788 F.2d 1115, 1115 (5th Cir. 1986).

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”).16 The Hague Convention “prescribes the exclusive means for service of

process emanating from one contracting nation and culminating in another.”17 As another

Section of this Court has described it:

The Hague Convention permits service from abroad through a foreign

state’s “Central Authority.” The authority or competent judicial officer of the

state from which the documents to be served originate must forward to the

foreign state’s Central Authority a request for service of process. This

request must contain five documents: (1) a “Request for Service Abroad of

Judicial or Extrajudicial Documents,” (2) a “Certificate” of service on the

reverse of the request, (3) a “Summary of the Documents to be Served,” (4)

a cover sheet, and (5) the actual document(s) to be served. If service of

process will occur in Germany, the document(s) to be served must be

written in German and either French or English. The Central Authority

reviews the request for service for compliance with the aforementioned

requirements, and notifies the applicant of any deficiencies.

In this case, the parties do not dispute that, if applicable, the Hague Convention

provides the exclusive means by which Krull, an international defendant, may be served.

The parties also do not dispute that Plaintiff did not comply with the Hague Convention

in serving Krull via Louisiana Revised Statute 13:3474.18 The only question, then, is

whether the Hague Convention applies in this case.

“Germany and the United States are both signatories to the Hague Convention.”19

“Article 1 defines the scope of the Hague Convention and states: ‘The present Convention

shall apply in all cases, in civil or commercial matters, where there is occasion to transmit

16 Otto Candies, LLC. v. Drager Safety AG & CO., KgaA, No. CIV.A. 13-447, 2013 WL 6243957, at *1 (E.D.

La. Dec. 3, 2013) (citing T.I.A.S. No. 6638, 20 U.S.T. 26120 U.S.T. 261).

17 Id. (citing Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 710 (1988) (Brennan, J.,

concurring)).

18 The Louisiana Secretary of State is not Germany’s “Central Authority,” and the petition cannot be mailed

to Krull under § 3475 because “Germany . . . has specifically objected to service by mail under the Hague

Convention.” PATS Aircraft, LLC v. Vedder Munich GmbH, 197 F. Supp. 3d 663, 673 (D. Del. 2016).

19 Otto Candies, LLC., 2013 WL 6243957, at *1.

a judicial or extrajudicial document for service abroad.’”20 “Use of the Hague Convention

procedures, when available, is mandatory if the documents must be transmitted abroad

to effect service,”21 but it is not mandatory if a defendant is served without sending any

documents abroad. In Volkswagenwerk Aktiengesellschaft v. Schlunk, the plaintiff relied

on Illinois’ long-arm statute to serve a foreign corporation.22 The long-arm statute

authorized the plaintiff to serve the foreign defendant by substituted service on the

defendant’s wholly owned domestic subsidiary because that subsidiary was a statutory

agent for service of process.23 The Supreme Court held the plaintiff’s service on the

subsidiary did not require the transmission of documents for service abroad and

accordingly did not implicate the Hague Convention.24 The Court stated,

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 of service. And,

contrary to [the defendant’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 of Article 1. Therefore the Hague Service

Convention does not apply, and service was proper. The judgment of the

Appellate Court is Affirmed.25

Plaintiff seeks to serve Krull via Louisiana Revised Statute 13:3474. Section 3474

provides:

The acceptance by non-residents of the rights and privileges conferred by

existing laws to operate motor vehicles on the public highways of the state

20 Am. River Transp. Co. v. M/V BOW LION, No. CIV.A. 03-1306, 2004 WL 764181, at *2 (E.D. La. Apr. 7,

2004) (citing Hague Convention, Nov. 15, 1965, art.1, 20 U.S.T. 361, at 362).

21 Id. (citing Schlunk, 486 U.S. at 694).

22 486 U.S. at 706–08.

23 Id.

24 Id.

25 Id.

of Louisiana, or the operation by a non-resident or his authorized agent,

employee or person for whom he is legally responsible of a motor vehicle

within the state of Louisiana, shall be deemed equivalent to an appointment

by such non-resident of the secretary of state of Louisiana or his successor

in office, to be his true and lawful attorney for service of process, as well as

the attorney for service of process of the public liability and property

damage insurer of the vehicle, if such insurer be a non-resident not

authorized to do business in the state, upon whom or such insurer, may be

served all lawful process in any action or proceeding against the non-

resident, or such insurer, growing out of any accident or collision in which

the non-resident may be involved while operating a motor vehicle in this

state, or while same is operated by his authorized agent or employee. In the

event of the death of such non-resident before service of process upon him,

any action or proceeding growing out of such accident or collision may be

instituted against the executors or administrators of such deceased non-

resident, if there be such, and if not, then against his heirs or legatees, and

service may be made upon them as provided in R.S. 13:3475. Process against

the defendant or defendants, the non-resident, his executors or

administrators, if there be such, and if not, then against his heirs or legatees,

or the liability insurer of such vehicle, as the case may be, shall be of the

same legal force and validity as if served upon such defendant personally.

Section 3475, which provides the means of carrying out service under § 3474, reads:

The service of the process authorized by R.S. 13:3474 shall be made by

serving a copy of the petition and citation on the secretary of state, or his

successor in office, and such service shall be sufficient service upon the

defendant, the nonresident, the executors or administrators of the deceased

nonresident, if there be such, and if not, then against his heirs or legatees,

or the nonresident liability insurer of the vehicle, as the case may be;

provided that notice of such service, together with a copy of the petition and

citation, is forthwith sent by the plaintiff by registered mail or certified mail

with receipt requested, or is actually delivered to the defendant and the

defendant's returned receipt, in case notice is sent by registered or certified

mail, or affidavit of the party delivering the petition and citation in case

notice is made by actual delivery, is filed in the proceedings before judgment

can be entered against the defendant. The court in which the action is

pending may order such continuances as may be necessary to afford the

defendant reasonable opportunity to defend the action.

The central dispute in this case is whether Plaintiffs service under § 3474 requires

Plaintiff “to transmit a judicial or extrajudicial document for service abroad.” “If [§ 3474]

requires transmission abroad to effect service, the Convention applies; if, however,

service can be effected without the transmission abroad of documents, the Hague

Convention does not apply and service is proper according to the state method.”26

Under § 3474, “service on the defendant is complete when the Secretary of State is

served.”27 Nevertheless, § 3475 requires “that notice of such service, together with a copy

of the petition and citation, is forthwith sent by the plaintiff by registered mail or certified

mail with receipt requested, or is actually delivered to the defendant and the defendant's

returned receipt . . . or affidavit of the party delivering the petition and citation . . . is filed

in the proceedings before judgment can be entered against the defendant.”

Many courts have held that if a nonresident motorist service statute, such as §

3474, requires the plaintiff or secretary of state to send notice of service to a defendant by

mail, the Hague Convention is implicated, even if the state statute appoints the secretary

of state as a defendant’s agent for service. For example, in Heredia v. Transportation

S.A.S., Inc.,28 the plaintiff relied on a New York nonresident motorist statute which

stated:

The use or operation by a non-resident of a vehicle in this state, . . . shall be

deemed equivalent to an appointment by such non-resident of the secretary

of state to be his true and lawful attorney upon whom may be served the

summons in any action against him . . . . Service of such summons shall be

made by mailing a copy thereof to the secretary of state . . . and such service

shall be sufficient service upon such non-resident provided that notice of

such service and a copy of the summons and complaint are forthwith sent

by or on behalf of the plaintiff to the defendant by certified mail or

registered mail with return receipt requested . . . .29

The court held that, “[a]lthough plaintiff followed the procedure established by [this

statute], proper service of the summons must also comply with the [Hague Convention]”

26 Melia v. Les Grands Chais de France, 135 F.R.D. 28, 30 (D.R.I. 1991) (citing Schlunk, 486 U.S. at 699).

27 Brown v. S.L. Netterville Logging, Inc., No. CIVA 09-200-JJB-SCR, 2009 WL 1875755, at *3 (M.D. La.

June 26, 2009) (citing Allen v. Campbell, 141 So. 827 (La. App. 2 Cir. 1932)).

28 101 F. Supp. 2d 158, 160 (S.D.N.Y. 2000) (citing N.Y. VEH. & TRAF. LAW § 253).

29 N.Y. VEH. & TRAF. LAW § 253.

because the statute requires that the Secretary of State mail copies of the summons and

complaint to non-resident defendants. Thus, New York law requires the transmittal of

documents abroad and the Hague Convention applies.”30 Similarly, in Curcuruto v.

Cheshire, the District Court for the Southern District of Georgia held “the Georgia Non–

Resident Motorist Act requires that a copy of the complaint and summons filed with the

Secretary of State also be sent to the defendant by registered mail. Clearly, this is a

transmission of documents abroad. The Hague Convention, therefore, governs the

sufficiency of service of process in this case.”31

In this case, the Court finds Louisiana Revised Statute sections 3474 and 3475 do

require transmission of documents for service abroad and accordingly implicate the

Hague Convention. Like the statutes in Heredia and Cheshire, the Louisiana nonresident

motorist statute requires “that notice of . . . service, together with a copy of the petition

and citation, is forthwith sent by the plaintiff” to the defendant.

Moreover, the Supreme Court made clear in Schlunk that only “[w]here service on

a domestic agent is valid and complete under both state law and the Due Process Clause”

does the Hague Convention have no further implications.32 While it is true that, under §

3474, service is valid once it is made on the secretary of state, it is not complete until

notice has been mailed to the defendant. Moreover, the Due Process Clause is not satisfied

until a plaintiff gives notice to a defendant under § 3475. Accordingly, the Court finds

Plaintiff must send documents abroad to complete service on Defendant Krull under

30 Heredia, 101 F. Supp. 2d at 160.

31 Curcuruto v. Cheshire, 864 F. Supp. 1410, 1411 (S.D. Ga. 1994) (citing Wasden v. Yamaha Motor Co.,

Ltd., 131 F.R.D. 206 (M.D. Fla. 1990) (finding Hague Convention invoked by similar Florida law requiring

that process filed with Secretary of State be mailed to defendant)).

32 Volkswagenwerk Aktiengesekkschaft v. Schlunk, 486 U.S. 694, 706–08 (1998)).

Louisiana Revised Statute § 3474, and the Hague Convention prohibits such service

except by its exclusive terms.

CONCLUSION

IT IS ORDERED that Plaintiff has until May 8, 2020, to serve Defendant

Sandra Krull in accordance with this order. If Plaintiff fails to serve Defendant Krull by

that date, Defendant Krull’s Motion to Dismiss for Insufficient Service of Process33 will

be granted.

New Orleans, Louisiana, this 9th day of March, 2020.

S AQ. —

SUSIE slong

UNITED STATES DISTRICT JUDGE

33 R. Doe. 12.