Foster v. Bridgestone Americas, Inc.
| Decision Date | 15 August 2011 |
| Docket Number | CIVIL ACTION 11-0175-WS-N |
| Parties | DEBORAH B. FOSTER, Plaintiff, v. BRIDGESTONE AMERICAS, INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
This matter comes before the Court on defendant Mazda Motor Corporation's Motion to Dismiss for Insufficient Process and Insufficient Service of Process (doc. 48). The Motion has been briefed and is ripe for disposition.1
Plaintiff, Deborah B. Foster ("Foster"), filed this action against Mazda Motor Corporation ("Mazda Japan"), Mazda Motor of America, Inc. ("Mazda America") and various other defendants, alleging claims for wrongful death based on a June 2009 automobile accident that claimed the life of Foster's husband, Larry Foster. Foster maintains that the accident was caused by catastrophic failure and tread separation of a tire on the 2000 Mazda B4000 pickup truck that her husband was driving.
There is no dispute that Foster properly served process on Mazda America via certified mail delivered to its registered agent in Alabama on April 14, 2011. (See doc. 7.) MazdaAmerica has answered both the original and amended complaints, and is otherwise fully participating as a defendant herein. There is no contest as to the propriety of Mazda America's joinder in this action.
The parties vigorously dispute the suficiency of service of process on Mazda Japan. The record reflects that Mazda Japan is a Japanese corporation headquartered in Hiroshima, Japan. (Tang Aff. , ¶ 3.)2 Plaintiff readily admits that she has not served process on Mazda Japan in the manner prescribed by The Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters, 20 U.S.T. 361 (entered into force February 10, 1969) (the "Hague Convention"), to which both the United States and Japan are signatories. Nonetheless, plaintiff's position is that she was not required to do so, inasmuch as she contends she properly served Mazda Japan by serving "Mazda America, as agent for Mazda Japan," through Mazda America's registered agent for service of process in Alabama. (Doc. 55, at 2.)3 In plaintiff's view, she served Mazda Japan by serving the registeredagent of its involuntary agent. Succinctly put, the question posed by Mazda Japan's Rule 12(b)(5) Motion is whether Foster may properly serve process on Mazda Japan simply by serving Mazda America as Mazda Japan's involuntary agent, or whether compliance with the Hague Convention is necessary to perfect service on Mazda Japan directly.4
Mazda Japan's Motion invokes Rule 12(b)(5) of the Federal Rules of Civil Procedure, which authorizes dismissal of a complaint for insufficient service of process. "When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally." Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala. 2003) (citations omitted).5 Mazda Japanhas made an initial showing that service of process was not achieved on it under the Hague Convention, and that Mazda America is not its designated or voluntary agent for service. Therefore, it becomes incumbent on Foster to demonstrate that she could properly serve Mazda Japan through Mazda America as its involuntary agent for service of process, in lieu of complying with the strictures of the Hague Convention.
The Federal Rules of Civil Procedure provide that service of process may be effected on a corporation "at a place not within any judicial district of the United States" via compliance with "any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents," or "by other means not prohibited by international agreement." Rules 4(f)(1), 4(f)(3), 4(h)(2), Fed.R.Civ.P.6 The parties are in agreement that Foster has neither complied nor even attempted to comply with the specific procedures set forth in the Hague Convention for service on Mazda Japan.7 They disagree as to whether she was required to do so.
The obvious question, then is whether the Hague Convention applies here. The Supreme Court has explained that "[i]f the internal law of the forum state defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988); see also Vega Glen v. Club Mediterranee S.A., 359 F. Supp.2d 1352, 1356 (S.D. Fla. 2005) () (citation and internal quotation marks omitted); Brand v. Mazda Motor of America, Inc., 920 F. Supp. 1169, 1171 (D. Kan. 1996) ().8 Thus, the Court looks to Alabama law to determine whether it required Foster to transmit documents abroad in order to serve process on Mazda Japan.
Alabama law generally provides that "service of process in a foreign country may be effected ... by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention." Rule 4.4(1), Ala.R.Civ.P. Moreover, Alabama courts have typically taken a dim view toward a plaintiff's efforts to serve a parent corporation through its subsidiary. See Edwards, 881 So.2d at 405 () (citations omitted). That said, Alabama law authorizes service of process on a company located in a foreign country by serving its domestic subsidiary in certain limited circumstances. In particular, the Alabama Supreme Court has held that service in this manner isappropriate where the plaintiff can show either (i) that the parent corporation "exercises such control and domination over the subsidiary that it no longer has a will, mind or existence of its own, and operates merely as a department of the parent corporation"; or (ii) that the parent corporation "has complete control over the subsidiary, conducting its business and creating its policies," that the subsidiary "is a mere adjunct and instrumentality of the parent," or that the subsidiary "is merely a dummy by means of which the parent corporation does business in the state." Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 884 (Ala. 1983) (citations and internal quotation marks omitted).9 In effect, the subsidiary becomes the parent's involuntary agent in these circumstances.
In evaluating the extent of a parent company's control and domination over a subsidiary for agency purposes, Alabama courts have considered the following circumstances, among others: (a) whether the parent owns all or most capital stock of the subsidiary; (b) whether the parent and subsidiary have common directors or owners; (c) whether the parent corporation finances the subsidiary; (d) whether the parent corporation subscribes to all the subsidiary's capital stock or otherwise causes its incorporation; (e) whether the subsidiary has grossly inadequate capital; (f) whether the parent corporation pays the subsidiary's salaries and other expenses or losses; (g) whether the subsidiary has substantially no business except with the parent and no assets except those conveyed by the parent; (h) whether the parent corporation's papers describe the subsidiary as a department or division of the parent, or its business or financial responsibilities as the parent's own; (i) whether the parent corporation uses the subsidiary's property as its own; (j) whether the subsidiary's directors or executives take orders from the parent corporation; and (k) whether the formal legal requirements of the subsidiary are not observed. See Edwards, 881 So.2d at 406-07; Environmental Waste Control, Inc. v. Browning-Ferris Industries, Inc., 711 So.2d 912, 915 (Ala. 1997).
Mazda Japan contends that the "high degree of control or domination" standard is not satisfied here. In support of this argument, Mazda Japan submits the affidavit of Barbara L. Tang, Assistant Secretary of Mazda America. 10 Tang avers that Mazda America and Mazda Japan are separate corporations, that Mazda America has not been formally authorized by Mazda Japan to accept service of process for it, that Mazda America has its own separate board of directors, that Mazda America's officers and executives are responsible for its day-to-day operations, that Mazda America maintains separate offices and records from those of Mazda Japan, that Mazda America pays its own debts and expenses, and that Mazda America maintains a separate payroll for its employees and provides its own benefit plans. (Tang Aff., ¶¶ 3-4, 6-9.)11
In response, Foster submits more than a dozen exhibits spanning nearly 200 pages of content culled from the Internet, including the website www.Mazda.com, that she contends establishes Mazda Japan's high degree of control and domination over Mazda America.12
(Schmitt Aff. (doc. 55, Exh. 4), and Exhs. 5-24.) From a document styled "Mazda in Brief 2010" and apparently drawn from the Mazda website, plaintiff points to the following facts: (i) Mazda Japan lists Mazda America as one of its four "Research and...
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