Broad v. Mannesmann Anlagenbau AG, 98-35263

• Citation: 196 F.3d 1075
• Decision Date: 07 October 1999
• Docket Number: No. 98-35263,98-35263
• Parties: (9th Cir. 1999) GARY DEAN BROAD; DENISE BROAD, husband and wife, Plaintiffs-Appellants, v. MANNESMANN ANLAGENBAU AG, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1075

196 F.3d 1075 (9th Cir. 1999)

GARY DEAN BROAD; DENISE BROAD, husband and wife, Plaintiffs-Appellants, v. MANNESMANN ANLAGENBAU AG, Defendant-Appellee.

No. 98-35263

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 7, 1999--Seattle, Washington

Decided November 23, 1999

Nate D. Mannakee, Tacoma, Washington,for the plaintiffs-appellants.

James E. Horne, Peery, Hiscock, Pierson, Kingman & Peabody, Seattle, Washington, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington; Barbara J. Rothstein, District Judge, Presiding. D.C. No. CV-97-00819-BJR

Before: Thomas M. Reavley,¹ Warren J. Ferguson, and Stephen S. Trott, Circuit Judges.

FERGUSON, Circuit Judge:

I.

This case involves a tension between the State of Washington's 90-day deadline for serving defendants and the provisions of the Convention on The Service Abroad of Judicial and Extrajudicial Documents in Civil Or Commercial Matters, Nov. 15, 1965 ("the Hague Convention"), 20 U.S.T. 361, T.I.A.S. No. 6638, which govern the service of process in signatory countries. In light of the important and undecided issue this case presents, and mindful that "[c]ertification saves time, energy, and resources and helps build a cooperative judicial federalism," we hereby certify to the Supreme Court of Washington that a question of Washington law is involved in this case which may determine the cause and as to which there is no controlling precedent in the decisions of the Washington Supreme Court. Arizonans for Official English v. Arizona, 520 U.S. 43, 46 (1997). Pursuant to S 2.60.020 of the Revised Code of Washington,² we therefore respectfully request the Washington Supreme Court to answer the following questions: (1) whether state law deems a designated foreign central authority a "substitute" or "agent " for purposes of meeting Washington's 90-day time period for service of process; (2) alternatively, whether state law recognizes an exception to the 90-day time limit for service of process where plaintiffs must, under the Hague Convention, relinquish control over serving a defendant to a foreign central authority for an indefinite period of time³.

We do not intend, by our phrasing of the question, to restrict the Washington Supreme Court's consideration of this request. We acknowledge that the Washington Supreme Court may, in its discretion, reformulate the questions.

II.

The plaintiffs, Gary Dean Broad ("Mr. Broad") and Denise Broad ("Ms. Broad"), brought this action under diversity of citizenship, 28 U.S.C. S 1332, seeking to recover damages from Mannesmann Anlagenbau AG, a German manufacturer. The defendant sold the Kingdome Mannesmann Facade Maintenance System from Germany and has not conducted business in Washington nor done any act there. The plaintiffs allege that, while Mr. Broad was conducting a demonstration of the defendant's system, on May 19, 1994, its trolley rollers caught and crushed his left hand, leaving him permanently injured. They assert common and state law claims for numerous damages as a result.

Washington law imposes a three year statute of limitations and a ninety day limit for service of process, unless the limitations period is tolled. Washington requires that plaintiffs commence a suit within three years of the cause of action. Wash. Rev. Code SS 4.16.080(2), 7.72.060(3). Once a person files a complaint, that person has 90 days to serve the defendant; where a plaintiff fails to meet this 90-day deadline, the action is deemed not commenced for purposes of tolling the statute of limitations. Wash. Rev. Code S 4.16.170. If the three year statute of limitations has expired, the action is barred. Wash. Rev. Code S 4.16.080.

Although the plaintiffs filed their complaint and summons within the three year statute of limitations, they were forced to surrender control over service of process to a foreign agency under the Hague Convention. The Hague Convention requires plaintiffs who sue foreign defendants in signatory countries to request that a designated central authority execute service of process. Art. 2; see also Annex, Art. 7a(1) (stating that Germany requires requests for service of process to be addressed solely to the designated central authority). Once a plaintiff sends a request for service to the central authority, that person loses control of service of process because Article 5(a) of the Hague Convention provides that the designated central authority is solely responsible for serving the document or for arranging to have it served "by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory." Art. 5; see also Annex, Art. 7. The Hague Convention does not impose any time limit on the central authority to effect service. Indeed, federal courts have recognized that central authorities can and do take significantly longer than 90 days to arrange for service of process. See, e.g., Marschhauser v. Travelers Indemnity Co., 145 F.R.D. 605, 609 (S.D. Fla. 1992) (noting that the designated central authority had received a request for service abroad nine months before decision, but had yet to arrange for service of process).

Despite the plaintiffs' attempt to serve the defendant under the Hague Convention within Washington's 90-day period, the German designated central authority did not execute service of process in time. The plaintiffs filed the complaint and summons on May 16, 1997. They sent a request for service of process to the designated central authority in Germany, the Bavarian State Ministry of Justice, on June 18, 1997. They received a response from the central authority in German on July 21, 1997. Two days later, on July 23, 1997, they obtained an English translation of the response, which informed them that Germany requires plaintiffs to translate all legal documents into German before submitting a request for service to the central authority. The plaintiffs retained a German law firm to assist them in complying with the Hague Convention and sent it the pertinent legal documents on July 31, 1997. On August 4, 1997, they authorized the German law firm to translate all documents into German and to send them to the central authority. On September 24, 1997, the German law firm reported that the central authority had forwarded the complaint and summons to a local court to serve the defendant. The certificate of service from the German central authority indicates that the defendants were actually served on September 18, 1997, 122 days after the plaintiffs filed their complaint and summons.

The district court dismissed the plaintiffs' suit as untimely. It concluded that Washington law barred their action because they had failed to actually serve the defendant within 90 days of filing a complaint and summons. The court did not, however, consider the tension this case presents between Washington's 90-day time limit for service of process and the Hague Convention's requirement that plaintiffs relinquish control over service to a designated central authority for an indefinite period of time. Having failed to identify this tension, it also did not recognize that applying the 90-day service limit in cases such as this might jeopardize the ability of Washington plaintiffs to vindicate their rights and encourage a designated central authority to delay serving defendants in order to protect them from liability in another country.

On appeal, the plaintiffs contend that this case, and the tension it presents between state and international law, is appropriate for certification to the Washington Supreme Court, and we agree. The plaintiffs have also argued that Rule 4(m) of the Federal Rules of Civil Procedure, which removes any deadline for service of process on a foreign defendant, applies in this case⁴. Until the Washington Supreme Court addresses the question of whether state law recognizes an exception to its 90-day rule for executing service of process when a plaintiff must...