# Howard v. Krull

> District Court, E.D. Louisiana · March 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10185341

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** March 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185341

## How later opinions describe it (automated extraction)

- finding Hague Convention invoked by similar Florida law requiring that process filed with Secretary of State be mailed to defendant

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185341. Public record. Not legal advice.