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Melnichuk v. Fine Hau Industry Co., Ltd.

United States District Court, W.D. Washington, Seattle

June 18, 2019

VYACHESLAV MELNICHUK, Plaintiff,
v.
FINE HAU INDUSTRY CO., LTD., et al., Defendants.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff's motion regarding service of process on Defendant Fine Hau Industry Co., Ltd. (Dkt. No. 19). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part the motion for the reasons explained herein.

         I. BACKGROUND

         Plaintiff Vyacheslav Melnichuk purchased an “extra strong” bungee cord manufactured by Defendant, a Chinese manufacturing company with its principal place of business in China. (See Dkt. Nos. 1-1 at 3, 21 at 5.) While using the bungee cord, Plaintiff sustained a permanent eye injury when one of the hooks on the bungee cord flew into his eye. (Dkt. No. 1-1 at 3.) Plaintiff filed suit in Washington state court. (Id. at 3-6.) The case was removed to this Court. (Dkt. No. 1.)

         Plaintiff attempted to serve Defendant by postal service on November 30, 2018, “per the Washington State Long-Arm Statute.” (See Dkt. Nos. 19-1 at 2, 19-2 at 1.) Upon removal, Plaintiff again mailed copies of the complaint and a request for waiver of service to Defendant. (See Dkt. No. 19-3 at 1.) Plaintiff then attempted to effect service through Defendant's counsel. (See Dkt. No. 21 at 2-3.) Defendant claims that it has not been properly served with the summons and complaint. (See Id. at 4-10.) Plaintiff alleges that Defendant “at all material times did business in the state of Washington . . . .” (Dkt. No. 1-1 at 2.) But Defendant notes that “Plaintiff does not allege that Fine Hau has offices or officers located within the United States, or that it has been or can be served within . . . the United States.” (Dkt. No. 21 at 5.)

         Plaintiff asks the Court to rule either that: (1) Plaintiff sufficiently served Defendant by mail per Washington's long-arm statute;[1] (2) Plaintiff sufficiently served Defendant via Defendant's attorney; or (3) Defendant must waive service. (Dkt. No. 19 at 2.) In the alternative, Plaintiff seeks: (1) an extension of time to allow Plaintiff to serve Defendant in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Convention”), Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638; (2) an order requiring Defendant to advise whether the complaint must be translated; and (3) an order requiring Defendant to pay Plaintiff's attorney fees incurred until service is made in accordance with the Convention. (Dkt. No. 19 at 2-4.)

         II. DISCUSSION

         A. The Convention

         The Convention “regularized and liberalized service of process in international civil suits.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). The Convention “must be applied” in countries that are a party to it, so long as: (1) the document to be transmitted is judicial or extrajudicial; (2) the transmittal is to be made between international parties to effect service; (3) the recipient's address is known, and (4) the document relates to a civil or commercial matter. Convention, art. 1, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638. The United States and China are both parties to the Convention. See id.; see also Declaration of the People's Republic of China in Connection with the Convention (“China Declaration”), Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (entered into force Jan. 1, 1992). The Convention is mandatory in this case because (1) it involves a judicial document, (2) to be transmitted for the purpose of effecting service, (3) Defendant's address is known, and (4) the document is a complaint in a civil matter. (Dkt. Nos. 1-1, 19-2); Volkswagenwerk, 486 U.S. at 705.

         Under the Convention, each signatory country designates a “central authority” to receive service requests on behalf of parties in that country. Convention, art. 2, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638. To serve a party in the recipient country, a designated authority in the forum country must send a service request to the recipient country's central authority, consisting of the Convention's “Model Form” and the documents to be served. Id. at art. 3. When a request for service is properly made, the central authority must serve the receiving party personally or must arrange service by a method that conforms to the recipient country's laws. See Id. at art. 5. The Convention allows alternative transmission methods that do not involve a central authority, such as direct mail to the recipient party, “[p]rovided the State of destination does not object [to service by mail] . . . .” Id. at art. 10(a); see also Water Splash, Inc. v. Menon, 137 S.Ct. 1504, 1513 (2017) (finding that service by mail meets the Convention's standards so long as “(1) the receiving state has not objected to service by mail, and (2) service by mail is authorized under otherwise-applicable law”). Service by mail is not permissible here because China has expressly opposed Article 10(a) service by mail. China Declaration, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (entered into force Jan. 1, 1992). Therefore, Plaintiff has not satisfied the Convention's requirements to properly effect service by mailing the complaint to the Defendant and Defendant's attorney.

         B. Federal Rule of Civil Procedure 4 and Washington Law

         “Unless federal law provides otherwise or the defendant's waiver has been filed, ” a party must serve a foreign corporation in a foreign country “in any manner prescribed by [Federal Rule of Civil Procedure] 4(f) . . . .” Fed.R.Civ.P. 4(h). Rule 4(f) provides that a party may be served outside of the United States “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention . . . .” Fed.R.Civ.P. 4(f)(1). The Rule goes on to enumerate other methods “if there is no internationally agreed means, or if an international agreement allows but does not specify other means” as well as “by other means not prohibited by international agreement, as the court orders.” Fed.R.Civ.P. 4(f)(2)-(3).

         Here, the Convention is an internationally agreed means of serving process that specifies the methods of transmission. Rule 4(f)(1) confirms that transmission under the Convention constitutes service. Fed.R.Civ.P. 4(f)(1). Plaintiff has not cited a federal rule that provides otherwise and Defendant has not waived service.[2] And, the Convention preempts any conflicting state law. See Volkswagenwerk, 486 U.S. at 699.[3]

         Accordingly, Plaintiff must serve Defendant in accordance with the Convention. Plaintiff's request that the Court rule service was sufficient is DENIED. However, Plaintiff's request for an order requiring ...


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