Chilean Nitrate Corp. v. M/V HANS LEONHARDT

• Decision Date: 30 December 1992
• Docket Number: Civ. A. No. 91-4466.
• Citation: 810 F. Supp. 732
• Parties: CHILEAN NITRATE CORPORATION v. M/V HANS LEONHARDT, in rem, Taffy Shipping Co., Ltd., Blue Anchor Line, Ltd., Consolidated Grain & Barge Company, Blue Anchor Line, Ltd. and Sociedad Quimica Y Minera De Chile, S.A.
• Court: U.S. District Court — Eastern District of Louisiana

810 F. Supp. 732

CHILEAN NITRATE CORPORATION v. M/V HANS LEONHARDT, in rem, Taffy Shipping Co., Ltd., Blue Anchor Line, Ltd., Consolidated Grain & Barge Company, Blue Anchor Line, Ltd. and Sociedad Quimica Y Minera De Chile, S.A.

Civ. A. No. 91-4466.

United States District Court, E.D. Louisiana.

December 30, 1992.

Ira Matthew Williamson, O'Neil Eichin, et al., New Orleans, LA, for plaintiff.

Christopher Ogilvie Davis, Mary Bethany Jackson, Phelps Dunbar, Charles F. Lozes, Cynthia Anne Wegmann, Terriberry, Carroll & Yancey, David M. Flotte, Georges M. Legrand, Hebert, Mouledoux & Bland, New Orleans, LA, for defendants.

RULING ON MOTION

LIVAUDAIS, District Judge.

Plaintiff Chilean Nitrate Corporation ("Chilean") has filed a motion to strike defenses number two, three, four, five, six, and seven from the answer filed by defendant Taffy Shipping Co. ("Taffy"), and defenses number one, two, three, and five from the answer filed by defendant Blue Anchor Line, Ltd. ("Blue Anchor"). Taffy opposes parts of the motion and Blue Anchor does not oppose any part of the motion.

I. Factual Background

In November 1989, a cargo of sodium nitrate owned by plaintiff was loaded aboard the M/V HANS LEONHARDT in Chile. Defendant Taffy Shipping, a Cyprus corporation with its agent for service of process (Leonhardt & Blumberg) in Germany, owns the vessel. Defendant Blue Anchor, a Liberia corporation, was the alleged operator/charterer of the vessel at the time. Part of the cargo was unloaded in Tampa, part was unloaded in New Orleans and shipped to Helena, Arkansas, and part was unloaded in Brownsville, Texas. Upon discharge in Helena and Brownsville, the cargo allegedly contained contaminants including rust flakes and paint chips.

After defendants authorized a time extension for plaintiff to file suit, plaintiff filed its complaint on December 9, 1991. On March 5, 1992, plaintiff mailed a summons and a translated complaint to the Ministry of Justice in Hamburg, Germany. On April 1, 1992, plaintiff received a letter in German from the Ministry of Justice indicating that the summons, the complaint, and all accompanying documents had to be translated in order to properly effectuate service of process. On April 9, 1992, prior to obtaining a translation of the letter in German, plaintiff mailed a summons (in English) and complaint (in German) directly to defendant Taffy through its agent for service of process. On May 21, 1992, plaintiff mailed a complete set of translated documents to Taffy Shipping. Four months later, plaintiff did not know the status of those documents, and consequently, on September 25, 1992, plaintiff mailed a complete set of translated documents to the Ministry of Justice. On October 22, 1992, the Ministry of Justice certified that plaintiff's documents had been served on defendant Taffy.

II. Analysis

A. Motion to Strike

The motion is now properly before the Court under Rule 12(f) of the Federal Rules of Civil Procedure. The rule provides in pertinent part:

Upon motion by a party before responding to a pleading ... the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

"Although motions to strike a defense are generally disfavored, a Rule 12(f) motion to dismiss a defense is proper when the defense is insufficient as a matter of law." Kaiser Aluminum, Etc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir.1982). Motions to strike "are within the sound discretion of the trial court." Federal Sav. and Loan Ins. Corp. v. Burdette, 718 F.Supp. 649, 662 (E.D.Tenn. 1989). With these principles in mind, the Court now addresses each of the challenged defenses.

B. Insufficiency of Service of Process

Defendant Taffy has devoted the great majority of its brief to this issue, and the Court believes that both sides have fully addressed whether service of process was sufficient. Both the United States and Germany are signatories to The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("the Hague Convention"). The Hague Convention governs in all civil and commercial cases where a party transmits a judicial or extrajudicial document for service abroad. See Vorhees v. Fischer & Krecke, 697 F.2d 574, 575 (4th Cir.1983). When a matter falls within the scope of the Hague Convention, service must be made strictly according to its guidelines. See Societe Nationale v. U.S. Dist. Court, S.D. Iowa, 482 U.S. 522, 534 n. 15, 107 S.Ct. 2542, 2550 n. 15, 96 L.Ed.2d 461 (1987). Also, Rule 4(i) of the Federal Rules of Civil Procedure sets forth provisions for service in a foreign country. Where Rule 4(i) conflicts with the Hague Convention, the Convention prevails. Harris v. Browning-Ferris Industries Chem. Serv., 100 F.R.D. 775, 777-78 (M.D.La.1984).

Defendant Taffy argues that plaintiff did not effectuate proper service of process within 120 days of filing the complaint, as required by Rule 4(j) of the Federal Rules of Civil Procedure. Plaintiff contends that because Rule 4(j) "shall not apply to service in a foreign country pursuant to subdivision (i) of this rule," the 120-day requirement is inapplicable. The Court disagrees. The Harris case has been construed by one court to mean that "the provisions of subdivision (i) apply only to service in a foreign country not covered by the Hague Convention." Foster v. Dentaurum, Inc., Civ. A. No. 85-4432, 1986 WL 20899, at *1 (D.Kan. Sept. 17, 1986). In the case before this Court, service must be made pursuant to the Hague Convention, not pursuant to Rule 4(i). Therefore, the language in Rule 4(j) that exempts Rule 4(i) cases from the 120-day requirement does not apply.

Plaintiff's failure to correctly serve process within the 120-day period, however, is not fatal to its case. Rule 4(j) provides that even if a plaintiff has not properly served a defendant within the 120-day period, such action can be excused for good cause shown. A plaintiff shows good cause for delay when he or she makes a good faith attempt to effectuate service of process, but the service nevertheless fails to satisfy all of the requirements set forth in the applicable rule.

"Each case must be taken on its own particular facts to determine whether a good faith effort to effectuate service has been made." Brown v. Bellaplast Maschinenbau, Civ. A. No. 84-1865, 1986 WL 6145, at *3 (E.D.Pa. May 27, 1986). The Court finds that on the facts of this case, plaintiff has made a good faith attempt to serve process. The terms of the Hague Convention "provide that each signatory country may reject certain general provisions and append specific requirements for valid service of process within that country." Vorhees, 697 F.2d at 575. Germany requires that all documents served in its country be written in, or translated into, the German language. Id. Furthermore, Germany rejects service of process by direct mail and requires instead that service be made through the appropriately designated central authority, the President of the Court of Hamburg. See Harris, 100 F.R.D. at 776-77. In the instant case, plaintiff first mailed on March 5, 1992 a summons in English and a complaint translated into German to the President of the Court of Hamburg. On April 9, before plaintiff realized that Germany requires all documents to be translated into German, it again mailed a summons in English and a complaint translated into German, but this time it sent the mail directly to Taffy Shipping. On May 21, after learning of the language requirement, plaintiff then sent a complete set of translated documents directly to Taffy Shipping. When plaintiff received no response, it finally complied with all relevant requirements on September 25, 1992 by mailing a complete set of translated documents to the President of the Court of Hamburg. In sum, plaintiff made four attempts to properly serve defendant Taffy Shipping. Consequently, this Court believes plaintiff acted in good faith.

In its memoranda, defendant Taffy Shipping cites several cases in an attempt to support its conclusion that the Court should dismiss plaintiff's case. Upon a closer examination of those cases, the Court finds defendant's arguments unconvincing. While the Harris case implicitly recognizes that the 120-day service requirement applies when the Hague Convention controls service of process, that court allowed the plaintiff nine months to properly serve the defendant. The relevant amended complaint in Harris was filed on June 3, 1983. On February 2, 1984, the court issued an order granting the plaintiff 30 days from that date in which to properly serve the West German defendant under the Hague Convention. 100 F.R.D. at 778. In the instant case, plaintiff has already effectuated proper service, and the ten-and-half-months in which it took to do so certainly does not call for dismissing the complaint, particularly in light of the Harris facts.

Defendant Taffy also cites Foster and Vorhees in calling for a dismissal of plaintiff's complaint. Foster is distinguishable because at the time the Court ordered plaintiff to show cause why defendant had not yet been properly served, plaintiff's original attempted service had been quashed four months earlier, and plaintiff still had not attempted to effectuate proper service. 1986 WL 20899 at *1. Vorhees does not support dismissing the instant case because plaintiff Chilean has already properly served Taffy Shipping. See id. at 576.

Finally, on the issue of serving process, the Court notes that dismissal is appropriate only where the plaintiff has made little or no effort to effect proper service. In one of the few cases where a complaint has been dismissed because the plaintiff failed to properly serve process on a foreign defendant, the court noted that plaintiff "did not exactly bend over backward to effect service." Montalbano v. Easco Hand Tools, 766 F.2d 737, 740 (2d Cir. 1985). This...