Leon v. Continental AG

176 F. Supp. 3d 1315, 2016 U.S. Dist. LEXIS 50295, 2016 WL 1388950
CourtDistrict Court, S.D. Florida
DecidedApril 1, 2016
DocketCase No. 1:16-cv-20572-JLK
StatusPublished
Cited by3 cases

This text of 176 F. Supp. 3d 1315 (Leon v. Continental AG) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leon v. Continental AG, 176 F. Supp. 3d 1315, 2016 U.S. Dist. LEXIS 50295, 2016 WL 1388950 (S.D. Fla. 2016).

Opinion

ORDER DIRECTING SERVICE OF PROCESS ABROAD

JAMES LAWRENCE KING, UNITED STATES DISTRICT JUDGE

This Cause having come before the Court on Plaintiffs Lourdes Leon, Alexander Paz, Seth Burack, and Nuria Reina’s Motion for Entry of an Order Directing Service of Process Abroad [DE #23] (“Motion”), requesting entry of an Order (1) directing the Clerk of the Southern District of Florida to request service of the Complaint and Summons under the Hague Service Convention of 15 November 1965 on the Service Abroad of Judicial and Ex[1317]*1317trajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”) on Defendants Continental AG (“Continental Germany”) and Daimler AG (“Mercedes Benz Germany") (collectively, the “German Defendants”), and (2) directing the Clerk to serve the Complaint and Summons by postal channel under the Hague Service Convention on Defendant Honda Motor Co. Ltd. (“Honda Japan”).

Introduction

Plaintiffs allege that airbags manufactured and sold by Defendants Continental1 and Atmel2 contain defective control units, and that such defective airbags were installed in millions of vehicles in the United States, including hundreds of thousands of Mercedes Benz3 and Honda4 manufactured vehicles. [DE # 1, ¶¶ 3-25]. These defective airbags have already been associated with bodily harm to a number of vehicle owners and/or occupants, and have the potential to cause bodily harm and/or death to the owners and/or occupants of other affected vehicles. Id. The Complaint also alleges that 8 of the 8 Defendants in this case — Continental Germany, Mercedes Benz Germany, and Honda Japan— are foreign corporations that regularly transact business in the United States, including within Florida. Id. at ¶¶ 41, 47, 50. Although Mercedes Benz Germany and Honda Japan manufactured hundreds of thousands of vehicles with defective Continental Germany manufactured airbag control units that are currently being driven in the United States, neither Continental Germany, Mercedes Benz Germany, nor Honda Japan has appointed a registered agent for service of process in Florida, or in any other state. See id. at ¶¶ 4-5.

Accordingly, Plaintiffs request entry of an Order directing the Clerk to effect service of process under the Hague Service Convention on the German Defendants and Honda Japan.

Service Under the Hague Service Convention

The Federal Rules of Civil Procedure provide several methods for serving a defendant in a foreign country, including “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague [Service] Convention” and, “unless prohibited by the foreign country’s law, by using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” Fed. R.Civ.P. 4(f)(1), (f)(2)(C)(ii). In turn, Article 3 of the Hague Service Convention provides for service of process “through the Central Authority of each [destination] country” and “Article 10(a) of the Hague Service Convention provides that, if the State of destination does not object, the Hague Convention does not change the freedom to send judicial documents, by postal channels, directly to persons abroad.” TracFone Wireless, Inc. v. Sunstrike Intern., Ltd., 273 F.R.D. 697, 699 (S.D.Fla.2011) (Judge Martinez) (citing TracFone Wireless, Inc. v. Bequator Corp., Ltd., 717 F.Supp.2d 1307, 1309 (S.D.Fla.2010) (Judge Hoeveler)).

The Court has confirmed that both Germany and Japan are parties to [1318]*1318the Hague Service Convention, but only Germany has objected to service of judicial documents by postal channel. Hague Conference on Private International Law, Hague Service Convention, https://www. hcch.net/en/instruments/specialised-sections/service. Therefore, under Article 3 of the Hague Service Convention, service of process on Continental Germany and Mercedes Benz Germany must be dispatched by the Clerk to the German Central Agencies for the states in which each maintains its principal place of business (Baden-Württemberg and Niedersachsen, respectively), Hague Conference on Private International Law, Germany — Central Authority and practical information for Hague Service Convention, https:// www.hcch.net/en/states/authorities/details 3/?aid=257 (noting that service pursuant to Article 3 of the Hague Service Convention should be initiated by the court in which service is sought). However, to the extent the Court determines that under Article 10(a) of the Hague Service Convention and Rule 4(f) service of process can be effectuated by postal channel, Honda Japan may be served by direct mail. Hague Conference oh Private International Law, Japan — Central Authority and practical information ' for Hague Service Convention, ' https://www.hcch.net/en/states/ authorities/details3/ ?aid=261 (declaring that Japan does not object to Article 10(a) of the Hague Service Convention).

Service by Direct Mail

To date, the Eleventh Circuit has not addressed the general issue of service of process by mail on a foreign defendant, but this Court recognizes that four federal circuits have concluded that service by mail is permissible under- Article 10(a) of the Hague Service Convention. Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir.2004); Research Systems Corp. v. IP-SOS Publicite, 276 F.3d 914, 926 (7th Cir.2002), cert. denied, 537 U.S. 878, 123 S.Ct. 78, 154 L.Ed.2d 133 (2002); Koehler v. Dodwell, 152 F.3d 304, 307-08 (4th Cir.1998); Ackermann v. Levine, 788 F.2d 830, 839-40 (2d Cir.1986).

This is the conclusion shared by many District Judges in this District: under the Hague Service Convention and Rule 4(f), provided the destination country does not object, United States legal documents may be served by direct mail. See Barriere v. Juluca, No. 12-23510-CIV, 2014 WL 652831, at *2-3 (S.D.Fla. Feb. 19, 2014) (Judge Moreno); Forth v. Carnival Corporation, No. 12-23770-CIV, 2013 WL 1840373 (S.D.Fla.2013) (Judge Seitz); TracFone Wireless, Inc. v. Unlimited PCS, Inc., 279 F.R.D. 626, 630-31 (S.D.Fla.2012) (Judge Ungaro); TracFone Wireless, Inc. v. Sunstrike Intern., Ltd., 273 F.R.D. 697, 699 (S.D.Fla.2011) (Judge Martinez); TracFone Wireless, Inc. v. Bequator Corp., Ltd., 717 F.Supp.2d 1307, 1309 (S.D.Fla.2010) (Judge Hoeveler); see also TracFone v. Does, No. 11-cv-21871-MGC, 2011 WL 4711458, at *2 (S.D.Fla. Oct. 4, 2011) (Magistrate Judge Turnof) (applying Fed.R.Civ.P. 45 with Article 10(a)).

The Court is aware — as Plaintiffs noted in their. Motion — that contrary authority exists on this issue. See, e.g., Intelsat Corp. v.

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Cite This Page — Counsel Stack

Bluebook (online)
176 F. Supp. 3d 1315, 2016 U.S. Dist. LEXIS 50295, 2016 WL 1388950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leon-v-continental-ag-flsd-2016.