Broad v. Mannesmann Anlagenbau, AG

• Decision Date: 21 September 2000
• Docket Number: No. 68804-4.,68804-4.
• Court: Washington Supreme Court
• Parties: Certification from the United States Court of Appeals for the Ninth Circuit in Gary Dean BROAD, Denise Broad, husband and wife, Appellants, v. MANNESMANN ANLAGENBAU, A.G., Appellee.

10 P.3d 371

141 Wash.2d 670

Certification from the United States Court of Appeals for the Ninth Circuit in

Gary Dean BROAD, Denise Broad, husband and wife, Appellants, v. MANNESMANN ANLAGENBAU, A.G., Appellee.

No. 68804-4.

Supreme Court of Washington, En Banc.

Argued June 15, 2000.

Decided September 21, 2000.

Nate D. Mannakee, Tacoma, Edwards, Sieh, Smith & Goodfriend, Howard Mark Goodfriend, Catherine Wright Smith, Seattle, for Appellants.

Peery, Hiscock, Pierson, James E. Horne, Seattle, Carrie M. Coppinger-Carter, Bellingham, for Appellee.

MADSEN, J.

This case involves two questions certified by the Ninth Circuit Court of Appeals which relate to service of process under the Hague Convention:

1. "[W]hether 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," or;

2. "[A]lternatively, 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 time."¹

Broad v. Mannesmann Anlagenbau, A.G., 196 F.3d 1075, 1076 (9th Cir.1999). We hold that the central authority is not an agent of the defendant, but the 90-day period of RCW 4.16.170 should be extended once required documents are transmitted to the central authority, provided they are sent within 90 days of filing the complaint.

FACTS

Plaintiffs Gary Dean and Denise Broad brought this diversity action in the United States District Court for the Western District of Washington against Mannesmann Anlagenbau, AG, a German manufacturer, for damages allegedly sustained when Mr. Broad was injured demonstrating the Kingdome Mannesmann Facade Maintenance System.

Under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 [1969] (the Hague Convention), an international treaty to which the United States and Germany are signatories, each state is to designate a central authority to receive requests for service of process. Art. 2. Although the convention also provides for several alternative methods of service, it allows signatory countries to object to those methods. Germany has objected, and requires that plaintiffs who sue defendants in Germany must request that the designated central authority execute service of process. Art. 2; Annex, Footnote 7(a)(1). Germany also requires that all documents be translated into German. Annex, Footnote 7(a)(1). The designated central authority is solely responsible for serving the documents or having them served "by a method prescribed by [Germany's] internal law for the service of documents in domestic actions upon persons who are within its territory." Art. 5(a); see Annex, Footnote 7. Once service is perfected, the central authority must forward to the applicant a certificate stating that the document has been served, or, if it has not, giving the reasons which prevented service. Art. 6. The Hague Convention contains no time limits for service.

Under Washington law, if a complaint is filed where service has not preceded the filing of the complaint, the limitations period is tolled for 90 days for purposes of service on the defendant. RCW 4.16.170.² If service is not effected by the end of the 90-day period, the action is deemed not commenced for purposes of the statute of limitations. RCW 4.16.170.

The United States Supreme Court has held that by virtue of the supremacy clause, U.S. Const. art. VI, the Hague Convention preempts inconsistent methods of service prescribed by state law in all cases to which the Hague Convention applies. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). The Hague Convention applies "where there is occasion to transmit a judicial or extrajudicial document for service abroad." Art. 1.

Mr. Broad was injured on May 19, 1994. Mr. and Mrs. Broad filed their complaint and summons on May 16, 1997, at the end of the limitations period. They sent a request for service of process to the Bavarian State Ministry for Justice, the relevant central authority in Germany, on June 18, 1997. On July 14, 1997, the central authority sent a response in German that was received by plaintiffs on July 21, 1997. On July 23, they obtained an English translation, which told them they had to submit documents in German. Plaintiffs hired a German law firm to assist, and sent documents to that firm on July 31, 1997. On August 4, 1997, plaintiffs authorized the German firm to translate the documents and send them to the central authority. On September 24, 1997, the German firm informed plaintiffs that the central authority had forwarded the complaint and summons to a local court to serve the defendant. Neither the Ninth Circuit nor the parties state when the central authority actually received the documents in German; the respondent's brief says the record is silent on this point, and the limited record before this court does not contain this information. The certificate of service from the central authority states that defendant was served on September 18, 1997. Thus, the defendant was served 125 days³ after the plaintiffs filed the complaint and summons.

The district court entered summary judgment of dismissal on the basis that the action was not commenced because the plaintiffs had not served the defendant within 90 days of filing the complaint and summons. Plaintiffs appealed. The Ninth Circuit concluded that the district court had failed to consider the tension between Washington law and the Hague Convention resulting from the Hague Convention's requirement that plaintiffs must relinquish control over service to a designated central authority for an indefinite time period. Accordingly, the Ninth Circuit has certified two questions seeking clarification of Washington law.

ANALYSIS

Initially, the defendant makes several arguments that go beyond the questions certified. The decision whether to answer a certified question pursuant to RCW 2.60 is within the discretion of the court. Hoffman v. Regence Blue Shield, 140 Wash.2d 121, 128, 991 P.2d 77 (2000); RAP 16.16(a). However, the court lacks jurisdiction to go beyond the question certified. Kitsap County v. Allstate Ins. Co., 136 Wash.2d 567, 577, 964 P.2d 1173 (1998); Shumway v. Payne, 136 Wash.2d 383, 391, 964 P.2d 349 (1998). Where an issue is not within the certified questions, and is within the province of the federal court, this court will not reach the issue. See Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash.2d 46, 78-79, 821 P.2d 18 (1991)

. The federal court retains jurisdiction over all matters except the local question certified. Lige Dickson Co. v. Union Oil Co., 96 Wash.2d 291, 294-95, 635 P.2d 103 (1981). Therefore, we address only those arguments necessary to answer the two certified questions.

1. Whether central authority is a substitute or agent for purposes of RCW 4.16.170.

Plaintiffs argue that service on the central authority is effective substituted service on an agent of the defendant, and that the Hague Convention affirmatively provides for such service. They also rely on a number of cases involving substituted service which, plaintiffs urge, are consistent with a holding that timely service on a designated central authority as the agent of a defendant is effective.⁴

As noted, the Hague Convention preempts inconsistent state law where the convention applies. Under its terms, a request must be sent to the designated central authority in Germany for service upon a German defendant. The treaty's terms clearly dictate that the central authority cannot be an agent, contrary to plaintiffs' argument.

In construing treaties, the court begins with the text of the treaty and the context in which the written words are used. Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991); Volkswagenwerk, 486 U.S. at 699, 108 S.Ct. 2104. Other general rules of construction may be applied where difficult or ambiguous terms are concerned. Eastern Airlines, 499 U.S. at 535, 111 S.Ct. 1489; Volkswagenwerk, 486 U.S. at 700, 108 S.Ct. 2104. Treaties are construed more liberally than private agreements, and a court may look to the history of the treaty, the negotiations, and the practical construction adopted by the parties. Eastern Airlines, 499 U.S. at 535, 111 S.Ct. 1489; Volkswagenwerk, 486 U.S. at 700, 108 S.Ct. 2104.

The Hague Convention is "intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad." Volkswagenwerk, 486 U.S. at 698, 108 S.Ct. 2104. The preamble of the treaty explains:

The States signatory to the present Convention,

Desiring to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time,

Desiring to improve the organization of mutual judicial assistance for that purpose by simplifying and expediting the procedure,

Have resolved to conclude a Convention to this effect....

(Emphasis added.)⁵ Article 1 states that the Convention applies "in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad. This Convention shall not apply where the address of the person to be served with the document is not known." (Emphasis added.) Article 2 provides that each contracting state will designate a central authority to "receive requests for service ...." (Emphasis added.) Article 3 provides that "[t]he document to be served or a copy thereof shall be annexed to the request." (Emphasis added.) Article 5 states that "[t]he Central Authority of the State addres...