Contour-Sierra Inc. v. AEBI Schmidt Intn'l, AG

Opinion

CONTOUR-SIERRA INC., No. 2:22-CV-00414-JAM-JDP Plaintiff, v. ORDER GRANTING DEFENDANT’S MOTION TO QUASH SERVICE AG, Defendant. This matter comes before the Court on Aebi Schmidt International AG’s (“Defendant”) motion to dismiss this action under Federal Rule of Civil Procedure (“FRCP”) 12(b)(5). See Def.’s Mot. to Dismiss (“Mot.”), ECF No. 11. Contour-Sierra, Inc. (“Plaintiff”) opposed the motion and Defendant replied. See Opp’n, ECF No. 19; Reply, ECF No. 20. For the reasons set forth below, the Court treats Defendant’s motion to dismiss as a motion to quash, which the Court grants.1 ///

1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for November 15, 2022. Plaintiff commenced this action alleging Defendant breached the parties’ exclusive dealership agreement. See Compl. ¶¶ 52- 84, ECF No. 1. Since Defendant is a Swiss subject, Plaintiff filed its complaint in this Court under 28 U.S.C. § 1332(a)(2). Id. ¶¶ 1, 7. Plaintiff’s complaint states a copy of the exclusive dealership agreement and notice terminating the agreement was annexed to and incorporated into the complaint as Exhibits A and B, respectively. Id. ¶¶ 13, 47. Both exhibits, however, are absent from Plaintiff’s filed complaint. See generally Compl. After it filed its complaint, Plaintiff served Defendant according to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965 (“the Hague Convention”), [1969] 20 U.S.T. 361, T.I.A.S. No. 6638. See Mot. at 1-2, 4. The Hague Convention is an international treaty that regulates how service is executed between citizens of its’ signatories—such as the United States and Switzerland. See 20 U.S.T. 361. As a result, the Hauge Convention governed Plaintiff’s service of Defendant. Defendant now moves to dismiss Plaintiff’s action under FRCP 12(b)(5) for insufficient service of process. See Mot. at 1, 2. Defendant’s motion argues dismissal is warranted because Plaintiff: (1) violated FRCP 10(c) by not attaching the incorporated exhibits to its complaint; and (2) did not comply with the Hague Convention’s requirement that Plaintiff translate the unattached exhibits into the appropriate Swiss language of German, French, or Italian. Id. at 3-5; see also Declaration/Reservation/Notification, HCCH, https://www.hcch.net/ en/notification s/?csid=424&disp=resdn. Defendant argues Plaintiff’s errors “prejudiced Defendant by depriving it of the service to which it is legally entitled” and “needed to fully investigate and analyze Plaintiff’s asserted facts and legal claims.” Mot. at 5. Plaintiff argues Defendant was properly served even though it admits it failed to attach the incorporated exhibits to the complaint. See Opp’n at 3-4. A. Legal Standard A 12(b)(5) motion challenges the mode or method of service of the summons and complaint. See Ringgold v. Burgett, Inc., No. 22-2CV-00836-DAD-CKD-PS, 2022 WL 8044117, at *1 (E.D. Cal. Oct. 17, 2022), report and recommendation adopted, No. 2:22-CV- 00836-DAD-CKD-PS, 2022 WL 16820859 (E.D. Cal. Nov. 8, 2022). Federal courts only acquire jurisdiction over a defendant after the defendant is properly served under FRCP 4. See Omni Capital Int'l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). When a defendant challenges service, the plaintiff bears the burden of demonstrating its sufficiency under FRCP 4. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). If the service of process is found insufficient, “[t]he choice between dismissal and quashing service of process is in the district court’s discretion.” See S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006). B. Analysis Under FRCP 10(c) “[e]xhibits attached to the complaint are part of the complaint for all purposes.” See Fed. R. Civ. P 10(c); Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). Here, because Plaintiff failed to attach the exclusive dealership agreement and notice terminating the agreement, Plaintiff clearly did not serve Defendant with its entire complaint—“which includes all exhibits and attachments.” Ringgold, 2022 WL 8044117 at *2. In turn, Plaintiff did not comply with Rule 4, “which requires service of a summons together with a complete copy of the operative complaint . . . .” Id. Moreover, in its defense, Plaintiff only cites inapposite cases outside this Court’s jurisdiction that fail to demonstrate Rule 4’s satisfaction. See Opp’n at 1-5. The Court thus concurs with Defendant that Plaintiff’s service was inadequate. The Court, however, does not find Plaintiff failed to comply with the Hague Convention. For Defendant’s argument under the Hague Convention to apply, Plaintiff would have had to: (1) attach the incorporated exhibits to its complaint; and (2) failed to translate them to the appropriate Swiss language. Neither of these actions occurred. Furthermore, the Hague Convention does not define what a complete complaint is or specify what documents a defendant must be served. See generally 20 U.S.T. 361. In other words, the Hague Convention itself does not require Plaintiff to serve Defendant with the incorporated exhibits. The Court thus finds Defendant’s argument under the Hague Convention misplaced. Nonetheless, given Plaintiff’s shortcomings under FRCP 10(c), Defendant’s 12(b)(5) motion must be granted. In like situations, however, “[c]ourts have regularly held[] that instead of dismissing the entire action for insufficient service, service nee enn ene ee nn nn eo nn on nn ne I OD

should simply be quashed, allowing the plaintiff to serve properly.” Teknekron Mgmt., Inc. v. Quante Fernmeldetechnik GmbH, 115 F.R.D. 175, 177 (D. Nev. 1987). Accordingly, this Court will treat Defendant’s motion to dismiss as a motion to quash and find Plaintiff’s service of its complaint to be insufficient. For the reasons set forth above, the Court GRANTS g | Defendant’s Motion to Quash Service. Dated: December 13, 2022 A 7 SENIOR UNITED*STATES DISTRICT JUDGE