Emery v. Woods Industries, et al.

2002 DNH 042

• Court: District Court, D. New Hampshire
• Decided: February 12, 2002
• Docket: CV-98-480-M
• Status: Published

Opinion

Emery v. Woods Industries, et a l . CV-98-480-M 02/12/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John Emery, Plaintiff

v. Civil No. 9 8-480-M Opinion No. 2002 DNH 042 Woods Industries, Inc., Test-Rite International Co., Ltd. (U.S.), Test-Rite International Co., Ltd. (Taiwan), and Anonymous II, Inc. (formerly Woods Wire Product, Inc.), Defendants

O R D E R

By order dated December 19, 2001, the court granted Woods

Industries Inc.'s motion for leave to file cross-claims against

its co-defendant Test-Rite International Co., Ltd. (Taiwan).

Pursuant to Rule 1 2 (b)(5), Test-Rite moves to dismiss those

cross-claims, saying Woods failed to serve them in accordance

with the Federal Rules of Civil Procedure. Woods objects.

Pointing to seemingly unrelated language in Rule 12( a ) (2) of

the Federal Rules of Civil Procedure, Test-Rite asserts that to

properly serve its cross-claims. Woods must comply with the

requirements of Rule 4 (i.e., serve the cross-claims upon the named defendant itself, rather than merely mailing a copy to its

counsel of record). See Test Rite's motion (document no. 77) at

para. 4 ("Test-Rite (Taiwan) respectfully believes that Test-Rite

(Taiwan) must be served the cross-claim pursuant to Fed. R. Civ.

P. 12(a)(2), and that Woods cannot rely upon service by plaintiff

Emery.").

Test-Rite is mistaken. Rule 12(a)(2) does not provide that

service of cross-claims upon a cross-claim defendant must comply

with the formalities of Rule 4; in fact, that rule is entirely

silent as to the means by which cross-claims are served.

Instead, it addresses the time frame within which an answer to a

cross-claim must be served.

Service of cross-claims is typically governed by Rule 5,

which provides that such service "shall be made upon the attorney

unless service upon the party is ordered by the court." Fed. R.

Civ. P. 5(b) (emphasis supplied). Here, the court has not

ordered that service of the cross-claims be made upon Test-Rite

and, therefore, service upon its counsel complies with the

requirements of the Federal Rules. See Fed. R. Civ. P. 5(b).

2 See also 4B W r i g h t & M i l l e r , F e d . P r a c . & P r o g . 3d § 1146 n.6 (2002)

("When nonresident defendants [are properly] before the court by

virtue of extraterritorial service of process, a cross-claim

against them may be served on their attorney.") (citing American

Optical Co. v. Philadelphia Elec. Co., 228 F.Supp. 292, 298

(D.Pa. 1964)); S c h w a r z e r , T a s h i m a , & W a g s t a f f e , F e d e r a l C i v i l P r o c e d u r e

B efore T r i a l , § 8:352 (2000) ("The cross-claim may be served by

mail upon the attorney for any party who has already appeared in

the action."); 28 F e d . P r o g . L. E d . § 65:234 (1996) ("a cross­

claim against an already-served and not-in-default party may be

served pursuant to FRCP 5.") .

As the court has previously noted, if Woods is content to

rely upon and accept any risks associated with the service made

by plaintiff upon Test-Rite, it should be permitted to do so.1

Test-Rite's motion to dismiss (document no. 77) is denied.

1 As the court has suggested in prior orders, because plaintiff elected to forego the use of letters rogatory as a means by which to effect service upon Test-Rite, it is conceivable that a Taiwanese court might conclude that the service actually employed by plaintiff was insufficient under Taiwan law and, therefore, refuse to enforce any judgment that might be awarded against Test-Rite in this court.

3 SO ORDERED.

Steven J. McAuliffe United States District Judge

February 12, 2002

cc: Scott A. Ewing, Esq. Richard E. Mills, Esq. Douglas J. Miller, Esq. David L. Weinstein, Esq.