Emery v . Wood Industries, et a l . CV-98-480-M 01/17/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John Emery, Plaintiff

v. Civil N o . 98-480-M Opinion N o .

Wood Industries, Inc., Test-Rite International Co., Ltd., and Anonymous I I , Inc. (formerly Wood Wire Products, I n c . ) , Defendants

O R D E R

On January 2 7 , 1996, John Emery was severely injured when an

allegedly defective voltage meter he was using exploded. The

record suggests that the voltage meter in question has since been

recalled by its manufacturer. Emery claims that each of the

named defendants either manufactured, designed, sold, or

distributed that product. Defendant Test-Rite International Co.,

Ltd. of Taiwan (“Test-Rite”) moves to quash service o r , in the

alternative, to dismiss all of Emery’s claims against it for lack

of personal jurisdiction. In support of its motion to quash service, Test-Rite says

Emery failed to effect service upon it in a manner that was

consistent with both the Federal Rules of Civil Procedure and the

laws of Taiwan. Emery, on the other hand, contends that he

properly served Test-Rite by hand-delivering a copy of the

complaint and summons to one of Test-Rite’s employees in Taiwan.

Notwithstanding seemingly unambiguous language to the contrary in

Rule 4(h)(2), Emery says such personal service upon a foreign

corporate defendant (located outside any district of the United

States) is implicitly permitted by the Federal Rules of Civil

Procedure. The court disagrees.

Discussion

In support of his claim to have properly served Test-Rite

under Rule 4 of the Federal Rules of Civil Procedure, Emery says:

Plaintiff . . . then sent a copy of the Summons and Amended Complaint, along with a Waiver of Service Form, to Test-Rite at its corporate offices in Taiwan. Said correspondence was never returned as “undeliverable” or “rejected,” thus implicitly indicating receipt by Test- Rite. However, as an additional measure, the Plaintiff retained Taiwanese counsel to serve Test-Rite in accordance with the applicable laws of Taiwan. In-hand

2 service on Test-Rite’s Assistant Manager for Public Relations was effected on May 1 9 , 2000.

Plaintiff’s memorandum (document n o . 36) at 4-5 (emphasis

supplied). The issue presented by defendant’s motion to dismiss

is whether Emery’s efforts were consistent with Rule 4(h)(2) of

the Federal Rules of Civil Procedure, which governs service on a

foreign corporation outside a judicial district of the United

States. That rule provides:

Unless otherwise provided by federal law, service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under a common name, and from which a waiver of service has not been obtained and filed, shall be effected:

* * *

(2) in a place not within any judicial district of the United States in any manner prescribed for individuals by subdivision (f) except personal delivery as provided in paragraph (2)(C)(i) thereof.

Fed. R. Civ. P. 4(h)(2) (emphasis supplied).

Subdivision (f) of Rule 4 prescribes three means by which

service may be effected. First, it may be accomplished by any

3 internationally agreed means reasonably calculated to give

notice, such as those authorized by the Hague Convention. Here,

however, the parties agree that Taiwan is not a member of the

Hague Convention and no other applicable international agreement

exists under which Emery might have effected service. Thus,

paragraph (f)(1) does not apply.

Alternatively, a party may effectuate service on a foreign

corporation “by other means not prohibited by international

agreement as may be directed by the court.” Rule 4(f)(3). Emery

has not, however, obtained an order directing service by any

other means upon Test-Rite. Consequently, he has not availed

himself of the means of service allowed by paragraph (f)(3).

Finally, in the absence of any internationally agreed means

of service, paragraph (f)(2) authorizes service: (a) in the

manner prescribed by the law of the foreign country for service

in that country; (b) as directed by the foreign authority in

response to a letter of request; (c) unless prohibited by the law

of the foreign country, “by any form of mail requiring a signed

4 receipt, to be addressed and dispatched by the clerk of the court

to the party to be served;” or (d) by delivery to the individual

defendant personally. As to the first method of service

authorized by this paragraph, Emery agrees that Taiwan law does

not specifically authorize service by personal delivery upon the

named defendant. See Letter of Attorney Freddy Ti Pang, Exhibit

D to plaintiff’s memorandum (explaining that “there is no Taiwan

law or other legal authority we can cite which expressly permits

such service”) (emphasis in original). Thus, service upon a

corporate defendant by hand-delivering a copy of the complaint

and summons to a corporate employee is not “prescribed by the

law” of Taiwan, and Emery cannot rely on the provisions of

paragraph (f)(2)(A).

Nor does Emery assert that he effected service upon Test-

Rite as directed by Taiwanese authorities, in response to a

letter of request. See Rule 4(f)(2)(B). Finally, it does not

appear that plaintiff seriously contends that his effort to serve

Test-Rite by mail complied with the Federal Rules since, among

other things, there is no evidence that Test-Rite actually

5 received that mailing. See Plaintiff’s memorandum at 4 (noting

that there i s , at best, only circumstantial evidence that Test-

Rite received a copy of the summons). And, perhaps more

importantly, that mailing was not “addressed and dispatched by

the clerk of the court.” Rule 4(f)(2)(C)(ii).

Consequently, the thrust of plaintiff’s argument is that

Rule 4(f)(2)(C)(i) (as modified by Rule 4(h)(2)) authorized him

to effect service upon Test-Rite by hand delivering a copy of the

complaint and summons to Test-Rite’s Assistant Manager for Public

Relations. That paragraph of Rule 4 ( f ) , which relates to service

upon individuals in a foreign country, authorizes service by

“delivery to the individual personally of a copy of the summons

and the complaint.” Although Rule 4(h)(2), which relates to

service upon foreign corporations, adopts most of the means of

service established by subdivision ( f ) , it specifically excludes

“personal delivery as provided in paragraph (2)(C)(i)” of

subdivision ( f ) . S o , the unambiguous language of Rule 4 plainly

excludes “personal delivery” as a means by which to serve a

6 foreign corporation that is outside a judicial district of the

United States.

Had the authors of Rule 4(h)(2) intended to allow service on

foreign corporations outside the United States by delivery of a

copy of the complaint and summons to a corporate officer or

agent, they no doubt would have simply reiterated the language

authorizing such service employed in Rule 4(h)(1). That

paragraph, which relates to service upon both foreign and

domestic corporations located within a judicial district of the

United States, specifically permits service by personal delivery

of a copy of the summons and complaint to an authorized agent or

officer of the corporate defendant.1

1 Subdivision (h) of Rule 4 provides that, unless prohibited by federal law, service upon a domestic or foreign corporation located within a judicial district of the United States may be effected:

in any manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(h)(1).

7 Importantly, not only does paragraph (h)(2) omit the

language employed in paragraph (h)(1) concerning service upon an

agent or officer of the foreign corporate defendant, it

specifically prohibits “personal delivery” of the summons. See

Fed. R. Civ. P. 4(h)(2). See also EOI Corp. v . Medical Marketing

Ltd.,

(D.N.J. 1997) (“Pursuant to Federal

Rule of Civil Procedure 4(h)(2), service upon a foreign

corporation, from which a waiver of service has not been obtained

and filed, shall be effected by any manner prescribed for service

upon individuals in a foreign country detailed in Federal Rule of

Civil Procedure 4 ( f ) , except that personal delivery is not

permitted.”) (emphasis supplied); New Line International

Releasing, Inc. v . Marty Toy (USA), Inc.,

at *2

(S.D.N.Y. 1995) (“Fed. R. Civ. P. 4(h)(2) provides that, if no

waiver of service has been obtained and filed, service shall be

effected in any manner prescribed for individuals by subdivision

(f) except for personal delivery as provided for in paragraph

(2)(C)(i) of that subdivision.”) (emphasis supplied).

8 Conclusion

Emery’s efforts to serve Test-Rite were defective. His

delivery (by hand) of a copy of the complaint and summons to

Test-Rite’s Assistant Manager for Public Relations, in Taiwan,

failed to comply with any of the procedures authorized by Rule 4

for service upon a foreign corporation located outside a judicial

district of the United States. Although there are several means

by which such service could be made, plaintiff has (at least to

date) not availed himself of them.

Defendant Test-Rite International Co., Ltd. of Taiwan’s

motion to quash service o r , alternatively, to dismiss plaintiff’s

amended complaint (document n o . 32) is granted in part and denied

in part. Insofar as Test-Rite moves to quash service, the motion

is granted. To the extent it seeks dismissal of plaintiff’s

claims, the motion is denied, without prejudice to renewing it if

service is properly effected. Because Test-Rite plainly has

actual notice of plaintiff’s claims, and there is no suggestion

of any prejudice to Test-Rite if plaintiff is afforded additional

time to effect service, plaintiff shall effect service, within

9 ninety (90) days of the date of this order, in accordance with

applicable federal and international law. See Fed. R. Civ. P.

4(m) and 6 ( b ) . See also Espinoza v . United States

3 8 ,

840-41 (10th Cir. 1995) (“The plain language of Rule 4 ( m ) ,

however, broadens the district court’s discretion by allowing it

to extend the time for service even when the plaintiff has not

shown good cause.”); Goodstein v . Bombardier Capital, Inc.,

6 2 , 666 (D.Vt. 1996) (holding that, under Rule 4 ( m ) , “a

court must grant an extension of time when the plaintiff can show

good cause for the failure to serve within 120 days. Moreover,

even if good cause is lacking, the court may extend the time, in

its discretion.”).

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 1 7 , 2001

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

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