Pennebaker v. Kawasaki Motors Corp.

155 F.R.D. 153, 1994 U.S. Dist. LEXIS 5837, 1994 WL 172195
CourtDistrict Court, S.D. Mississippi
DecidedApril 19, 1994
DocketCiv. A. No. 3:93-cv-452WS
StatusPublished
Cited by8 cases

This text of 155 F.R.D. 153 (Pennebaker v. Kawasaki Motors Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennebaker v. Kawasaki Motors Corp., 155 F.R.D. 153, 1994 U.S. Dist. LEXIS 5837, 1994 WL 172195 (S.D. Miss. 1994).

Opinion

ORDER

WINGATE, District Judge.

Before the court is the motion of defendant Kawasaki Heavy Industries, LTD., (hereinafter “KHI”) to be dismissed from this lawsuit under Rule 12(b)(4)1 on the ground of insufficiency of service of process. KHI, a Japanese national corporation, asserts that plaintiffs modes of attempted service of process upon it by registered mail to its place of business in Japan and by plaintiffs service of process in the United States upon KHI’s wholly-owned subsidiary, Kawasaki Motors, U.S.A., an unauthorized agent for service of process for KHI, are improper and fail to effectuate process since these methods are not condoned by The Hague Convention.2 Plaintiff Carey L. Pennebaker opposes the motion. Persuaded by the reasoning of defendant’s motion and the case authorities in support of same, this court agrees with defendant that plaintiff has not effectuated proper service here pursuant to The Hague Convention. However, the court declines to dismiss this action at this time, but, instead, will permit plaintiff a reasonable time to perfect proper service under The Hague Convention.

The two parties to this motion are the plaintiff, Carey L. Pennebaker, an adult resident citizen of Adams County, Mississippi, and KHI, previously identified herein as a Japanese national corporation.

The juridical dispute which brings together the plaintiff and defendant is the plaintiff’s products liability claim arising from injuries the plaintiff suffered when riding on a three-wheeled all-terrain vehicle allegedly manufactured and marketed by the defendants. Plaintiffs lawsuit was removed to this court from the Circuit Court for the First Judicial District of Hinds County, Mississippi, pursuant to Title 28 U.S.C. § 1441.3 This court [155]*155has jurisdiction over this matter pursuant to 28 U.S.C. § 1332,4 diversity of citizenship, and a minimum amount in dispute in excess of $50,000.00.

The key facts pertinent to a resolution of this issue are few and simply stated. On June 30, 1993, the plaintiff filed suit against the defendants in the Circuit Court for the First Judicial District of Hinds County, Mississippi. On or about July 8, 1993, the plaintiff attempted to serve KHI by mailing a copy of the first amended complaint and a summons by registered mail to KHI’s place of business in Japan. On July 21, 1993, all defendants, including KHI, pursuant to Title 28 U.S.C. § 1441 et seq., filed a notice of removal to remove this case from state to federal court. Defendants filed an amended notice on August 9, 1993. Meanwhile, on August 8,1993, after plaintiff had been made aware of KHI’s challenge to the sufficiency of the registered mail service attempt, plaintiff served process upon Kawasaki Motors, U.S.A., located in Irvine, California, as KHI’s involuntary agent for service of process. Kawasaki Motors, U.S.A., refused service on behalf of KHI.

Plaintiff apparently has abandoned any argument touting the sufficiency of its attempted service upon KHI by registered mail to KHI’s place .of business in Japan. Plaintiff does not even discuss the point in his Brief in Opposition to Defendant’s Motion to Dismiss for Insufficiency of Service of Process.

Instead, in support of his argument that he has properly served KHI, plaintiff places his reliance totally upon his service of process upon KHI’s wholly-owned subsidiary, Kawasaki Motors, U.S.A., and upon the dictates of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). Plaintiff contends that Schlunk stands for the proposition that where a plaintiff may effect service upon a foreign defendant in the United States, plaintiff need not follow the strictures of The Hague Convention. In Schlunk, the United States Supreme Court held as much when, under an Illinois long-arm statute, the Court found proper service where the plaintiff there had served in the United States the domestic subsidiary of a foreign corporation as an involuntary agent for service of process. Id., 486 U.S. at 707-08, 108 S.Ct. at 2112. Our plaintiff in the instant case contends that his actions here have been blessed by Schlunk since here he served process in the United States upon KHI’s wholly-owned subsidiary, Kawasaki Motors, U.S.A., as the managing agent or general agent for KHI under Rule 45 of the Federal Rules of Civil Procedure.

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between—
(1) citizens of different States; ...

[156]*156Plaintiff also argues that KHI has proceeded on the merits of this action by joining in removal of this cause from state court and by noticing the depositions of the plaintiff and his parents. Hence, says plaintiff, KHI has waived any objections to defects regarding service of process upon it. Furthermore, according to plaintiff, the defendant cannot be heard to claim that it is making a special appearance in this cause because, says plaintiff, under Mississippi law special appearances are not permitted.

This court has considered plaintiffs arguments, but finds them unpersuasive. This court is satisfied that under the instant facts plaintiff must abide by The Hague Convention in order to effect proper service upon the defendant.

The Hague Convention is a multi-national treaty endorsed by its signatory nations in 1965. The entire treaty may be found at 28 U.S.C.A. Federal Rules of Civil Procedure 4, page 216 (1992). The treaty is self-executing, providing plaintiffs an effective means to serve process upon foreign national corporations which would give proper notice to a defendant and which would not be objectionable to the sovereign of the country where the defendant is located.

The Convention provides certain specific procedures plaintiffs must utilize to accomplish service of process. Articles 2 through 6 provide for service through a central authority in each country. Article 8 permits service through diplomatic channels. Article 19 allows service by any method of service permitted by the internal laws of the country in which service is made.

Under Article 21, each signatory nation had to ratify its provisions subject to conditions or objections. Japan set forth several specific requirements which included specifications as to the use of its postal service and a requirement that all documents be written in or translated into the Japanese language.

Article 10 of the Convention provides:

Provided the State of destination does not object, the present Convention shall not interfere with—

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Cite This Page — Counsel Stack

Bluebook (online)
155 F.R.D. 153, 1994 U.S. Dist. LEXIS 5837, 1994 WL 172195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennebaker-v-kawasaki-motors-corp-mssd-1994.