Kelvin Manbodh Asbestos Litigation Series v. Hess Oil Virgin Islands Corp.

MEMORANDUM OPINION

(November 30, 2005)

THIS MATTER is before the Court on the motions1 of Third-Party Defendants Rubber & Gasket Co. of Puerto Rico [hereinafter “R & G”] and General Engineering Corporation [hereinafter “GEC”] entitled “Requesting Clarification and Request for Proper Service.” Third-Party Plaintiffs Hess Oil Virgin Islands Corporation [hereinafter “HOVIC”] and Litwin Corporation [hereinafter “Litwin”] filed oppositions to R & G’s and GEC’s motions. For the following reasons, GEC’s motion shall be granted and R & G’s motion shall be denied.

I. BACKGROUND

In its motion, R & G, named in the Third-Party Complaints of both HOVIC and Litwin, challenges the manner and means employed by HOVIC and Litwin to effect service. GEC, named in only Litwin’s *296Amended Third-Party Complaint, makes similar challenges. They both argue that service by first-class mail with return receipt fails to comply with the general guidelines of Rule 4(d) of the Federal Rules of Civil Procedure, requiring personal service of a defendant when no waiver is received within twenty (20) days of attempted service by an acceptable waiver method. They also claim that service was improper because of the failure to serve a complaint for each one of the first-party plaintiffs2 whose claims form the basis for the third-party matters.

II. DISCUSSION

Service in proceedings before the Superior Court shall be accomplished in the same manner as required by Rule 4 of the Federal Rules of Civil Procedure. Super. Ct. R. 27(b). Although the general procedure for service and waiver is contained in Rule 4(d), Rule 4(e) of the Federal Rules of Civil Procedure alternatively provides, in relevant part, that

[U]nless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed other than an infant or an incompetent person, may be effected in any judicial district of the United States:

(1) pursuant to the law of the [territory] in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the Courts of general jurisdiction of the state ...

*297Fed. R. Civ. P. 4(e)(1).3 Where the party to be served is a corporation, Rule 4(h) adopts an even more expansive rule, allowing for service according to local law as contained in Rule 4(e)(1) and also allowing service upon officers, managing or general agents, or any authorized agent of the corporation. Fed. R. Civ. P. 4(h).4

The purpose of Rule 4 is to assure that appropriate notice is given to all persons against whom claims are made.5 Fed. R. Civ. P. 4 advisory committee’s notes to the 1993 Amendments. Contrary to R & G’s and GEC’s collective assertion, although Rule 4 of the Federal Rules of Civil Procedure provides acceptable manners of service for different types of defendants and an accompanying waiver service, the listed means are not exclusive; Rule 4 provides that local law may supply additional means of acceptable service. Fed. R. Civ. P. 4(e), (h). This Court now examines these laws.

Service is referenced in chapters 7, 501, and 503 of title 5 of Virgin Islands Code. Since this case does not involve service on infants or incompetent persons or service by publication, this Court will not consider chapter 7 of title 5 of the Virgin Islands Code. Chapter 501, in *298particular section 4904, provides that service may be made outside the territory when “the exercise of personal jurisdiction is authorized by this chapter.” V.I. Code Ann. tit. 5, § 4904 (1997). This “chapter” refers to the bases of personal jurisdiction over persons outside the Virgin Islands. 5 V.I.C. §§ 4901-05. Finally, section 4911 of chapter 503 of title 5 of the Virgin Islands Code provides the authorized maimer and proof of service. 5 V.I.C. § 4911.6

A. Service by HOVIC

The service employed by HOVIC satisfies the requirements of Rule 4(h) of the Federal Rules of Civil Procedure and the previously discussed statutory provisions, notwithstanding any alleged failure to comply with Rule 4(d). To begin, this Court considers the components of proper service under section 4911, as the source of local law. The first requirement, that the law authorizes service outside the territory, is satisfied when the exercise of personal jurisdiction over the defendant is permitted under chapter 501 of title 5 of the Virgin Islands Code. See 5 V.I.C. §§4911, 4904. As detailed in the Memorandum Opinion Denying R & G’s Motion to Dismiss, the exercise of personal jurisdiction over R 6 G with respect to the counts in HOVIC’s complaint is statutorily and constitutionally permissible. (Nov. 30, 2005 Mem. Op. Denying R & G Mot. to Dismiss at 7-24.) See generally 5 V.I.C. § 4903(a).

*299Similarly, the maimer of service employed, “personal delivery in the maimer prescribed for service within this territory,” is “reasonably calculated to give actual notice.” 5 V.I.C. § 4911(a)(1). According to HOVIC’s Notice of Proof of Service, HOVIC, through process server Ernesto Acosta Vega, served a copy of the complaint and summons on R & G, by way of Comptroller Raul Millan, on February 3, 2005.7 (HOVIC Notice of Proof of Service, Ex. A.) Rule 4(h) of the Federal Rules of Civil Procedure provides two primary means of effecting service on corporations. FED. R. Civ. P. 4(h). First, a corporation may be served in the same manner as individuals under Rule 4(e)(1), pursuant to local law. Id. Second, service may be accomplished by delivering a copy of the summons and complaint to “any officer, a 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). Raul Millan, the Comptroller of R & G, may be an officer of the corporation or an agent so authorized. Thus, the delivery of the summons and complaint to Raul Millan may satisfy both options under Rule (4)(h)(1). The service is permissible under Rule 4(e)(1) — personal service under section 4911(a)(1) — and likely complies with the requirement of personal service of an officer of R & G. HOVIC’s maimer of service was proper and R & G shall answer or otherwise move without further delay. See generally, SUPER. Ct. R. 32; Fed. R. Civ. P. 8; Fed. R. Civ. P. 9; Fed. R. Civ. P. 12.

B. Service by Litwin

Litwin’s maimer of service presents a closer question. Because GEC and R & G are differently situated, this Court will consider the propriety of service on each defendant separately. With GEC, Litwin attempted to serve both GEC agent John Wessel and GEC counsel Wilfredo Geigel by express mail with return receipt to their respective Virgin Islands offices in November 2004. (Litwin Notice of Proof of Service, Summons to GEC.) Service by mail with return receipt has been a topic of some discussion in previous Virgin Islands decisions. See generally Liburd v. Platzer, 25 V.I. 171, 175-77, 1990 U.S. Dist. LEXIS 18318 (D.V.I. 1990); Picon v. Sugar Bay Condos. No. 1 Homeowners Assoc., 23 V.I. *300421, 422-25 (D.V.I. 1988); Corporacion Insular de Seguros v. West Indies Transport Ltd., 22 V.I. 31, 33-34, 1986 V.I. LEXIS 1 (Terr. Ct. 1986). All of these opinions predate the amendments to Rule 4 of the Federal Rules of Civil Procedure. The conclusions that may be gleaned from these decisions, then, are limited. Picon and Liburd collectively stand for the proposition that 4(e) allows for local law to supply additional forms of acceptable service, outside the precepts of the service by mail with return receipt described in the waiver provision (then 4(c)(2)(C) now 4(d)(2)). Service of a summons and complaint on a defendant in the Virgin Islands by mail with return receipt, however, is not one of the locally created additional manners of service. See 5 V.I.C. § 4911(a) (by its terms this provision only applies to service outside the territory). Accordingly, GEC, as a party within the Virgin Islands, must be served personally, according to Rule 4(d)(2) or 4(h) of the Federal Rules of Civil Procedure.8 Until then, this Court will not have jurisdiction over GEC as contemplated by section 115 of title 5 of the Virgin Islands Code.

Litwin’s service of R & G, however, tracks sub section 4911(a)(3) of title 5 of the Virgin Islands Code more closely. The service of R & G by express mail with return receipt signed by Francisco Gotay in Puerto Rico, on November 11, 2004, according to Litwin’s Notice of Proof of Service, appears to comport with the requirements of section 4911(a). See 5 V.I.C. § 4911(a)(3). As detailed above, the law of the Virgin Islands authorizes service outside the territory where the exercise of personal jurisdiction is permissible under the personal jurisdiction chapter. See 5 V.I.C. §§ 4911(a)(3), 4904. Without the benefit of a full factual record, this Court assumes for the purposes of this motion, that the exercise of personal jurisdiction with respect to Litwin’s counts against R & G, like HOVIC’s counts, may be similarly proper.9 (See Nov. 30, 2005 Mem. Op. Denying R & G Mot. to Dismiss at 7-24.) In *301addition, service by mail with signed return receipt is a manner reasonably calculated to provide actual notice. 5 V.I.C. § 4911(a)(3). There is no dispute as to whether R & G actually received the copy of the complaint or whether there exists a signature confirming receipt. The service of R & G by first-class mail, return-receipt, is permissible for service of a corporation under Rule 4(h)(1).

III. CONCLUSION

This Court concludes that the service of R & G by HO VIC and Litwin was proper because it complied with the guidelines of Rule 4 and the applicable Virgin Islands service statutes. No further service of the summons or complaint shall be required. Conversely, Litwin’s service of GEC by first-class mail was defective because service by first-class mail is not a permissible manner of service for Virgin Islands residents. GEC must be served personally in compliance with the requirements contained in Rule 4(d) or (h) of the Federal Rules of Civil Procedure. An accompanying order to this effect will be issued.