R. Griggs Group Ltd. v. Filanto Spa

• Decision Date: 05 February 1996
• Docket Number: No. CV-N-95-00379-DWH.,CV-N-95-00379-DWH.
• Parties: R. GRIGGS GROUP LIMITED, a company of the United Kingdom, Plaintiff, v. FILANTO SPA, an Italian company, Defendant.
• Court: U.S. District Court — District of Nevada

920 F. Supp. 1100

R. GRIGGS GROUP LIMITED, a company of the United Kingdom, Plaintiff, v. FILANTO SPA, an Italian company, Defendant.

No. CV-N-95-00379-DWH.

United States District Court, D. Nevada.

February 5, 1996.

John Frankovich, Marcy J. Bergman, Steven M. Selna, J. Suzanne Siebert, Reno, NV, for plaintiff.

Richard Glasson, Chris D. Nichols, Reno, NV, for defendant.

MEMORANDUM DECISION AND ORDER

HAGEN, District Judge.

Before the court is defendants' motion to quash service of process (# 16). For the reasons stated below, defendants' motion to is denied.

Background

Plaintiff R. Griggs Group, Ltd. (hereinafter Griggs), a company of the United Kingdom, filed this action against Filanto Spa (hereinafter Filanto), an Italian company, for trademark infringement, seeking damages and declaratory and injunctive relief. From February 21 to 24, 1995, Griggs participated in a footwear trade show in Las Vegas, Nevada. During the trade show, Griggs identified Filanto as marketing footwear which allegedly bore a trade dress substantially identical to those manufactured and trademarked by Griggs. In March, Griggs participated in another footwear trade show in Bologna, Italy, at which Griggs again identified Filanto as marketing allegedly infringing footwear.

Griggs attempted to serve process on Filanto in two ways. First, it served a Giorgio Lumo¹ at the Las Vegas trade show. Griggs also attempted to serve Filanto by mailing a summons and complaint to Antonio Filograna, Commercial President Commander, at Filanto's offices in Italy via Federal Express. The package was delivered on August 28, 1995, and signed for by Luigi Serrano. Filanto moved to quash service on Mr. Lumo.

Service on Mr. Lumo

Filanto's motion (# 16) purports to move to quash service on Giorgio Lumo pursuant to F.R.C.P. 12(b)(4). Although federal courts have the authority to quash defective service of process as an alternative to dismissing a complaint, the Federal Rules of Civil Procedure technically do not provide for Motions to Quash. Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir.1985). F.R.C.P. 12(b)(5) is the correct provision for challenging defective service. Therefore, the court deems Filanto's motion to be a Motion to Dismiss for insufficiency of service of process pursuant to F.R.C.P. 12(b)(5).

The Hague Convention On The Service Abroad Of Judicial And Extrajudicial Documents In Civil Or Commercial Matters (hereinafter the Hague Convention) applies when the internal law of the forum country requires the transmittal of documents abroad as a necessary part of the service. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). The Hague Convention provisions are mandatory; failure to comply voids the attempted service. Id. However, where service on a domestic agent of a foreign defendant is valid and complete, the Hague Convention has no further implications. Id.

Giorgio Lumo's relationship to Filanto is unclear. However, an unrefuted affidavit from Antonio Filograna establishes that he is not an officer, director, employee, managing agent, or general agent of Filanto nor is he an agent authorized by appointment or by law to receive service of process on behalf of Filanto. (Defendant's Motion to Quash, Filograna Affidavit, ¶¶ 3, 4). Plaintiff has made no showing that Mr. Lumo was sufficiently integrated with the organization to render service upon him fair, reasonable and just. Cf. Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685 (9th Cir.1988). While the process server may have thought he was serving a legal representative of Filanto (see Return of Service (# 17); "served Georgio Dumi (legal representative — employee)"), no facts have been presented to the court to support this assumption and that assessment has no bearing on the court's determination. Plaintiff freely admits that it has yet to conduct discovery and does not know the extent or nature of Mr. Lumo's involvement with Filanto, yet asks the court to share its view that "considering the circumstances surrounding the service, it is apparent that Mr. Lumo represented Filanto during the WSA show" and that "clearly some formal relationship existed" between them. This the court declines to do. The burden is on the plaintiff to establish the propriety of the service. Aetna Business Credit, Inc. v. Universal Decor & Interior Design, Inc. 635 F.2d 434, 435 (5th Cir.1981). Because Mr. Lumo is not an officer, director, employee, managing agent, or general agent of Filanto nor is he an agent authorized by appointment or by law to receive service of process on behalf of Filanto, the court finds that the attempted domestic service upon him was ineffective under Rule 4.

Although defendant's original motion referred only to the attempted service upon Mr. Lumo, the record reflects that Griggs also attempted to serve Filanto by mailing a summons and complaint to Antonio Filograna, Commercial President Commander, at Filanto's offices in Italy via Federal Express.² Because substantive legal arguments in both plaintiff's opposition and the subsequent memoranda filed with the court by both parties specifically address this attempt at service, the court now considers the matter of Federal Express service on Mr. Filograna.

Service of Process by Mail Under the Hague Convention

"Service of process" is a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). Service of process must comply with both constitutional and statutory requirements. Constitutional due process requires that service of process be reasonably calculated to provide actual notice. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). In this case, defendant does not contest the fact that it received actual notice, nor does it contend that the notice was constitutionally defective. Thus, the question before the court is purely statutory.

Federal Rule of Civil Procedure 4 governs service of process. Strict compliance with the rules governing manner of service is required. Under Rule 4(f), service of process upon individuals in foreign countries is governed by the methods set forth by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention On The Service Abroad Of Judicial And Extrajudicial Documents (hereinafter the Hague Convention). F.R.C.P. 4(f)(1). Because both Italy and Great Britain are signatories to the Hague Convention, service of process on an Italian defendant in Italy by a British plaintiff is governed by the Hague Convention. Volkswagenwerk, 486 U.S. at 705, 108 S.Ct. at 2111 (1988). If the applicable international agreement, in this case the Hague Convention, allows, service may be effected by a manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction. F.R.C.P. 4(f)(2)(A). Article 19 of the Convention provides that service of documents from abroad may be made by any method permitted by the internal law of the receiving state. Thus, service by mail is proper if allowed either by internal Italian law or by provisions of the Hague Convention itself. Neither party has placed before the court any evidence of Italian law regarding the propriety of service by mail; therefore, the court will consider only whether service was proper under the Hague Convention.

The Hague Conference on Private International Law is an international forum for discussing and proposing methods for unifying rules of private international law. B. Ristau, International Judicial Assistance (Civil And Commercial), 1990 Revision, Vol. 1, § 1-1-2. The tenth session of the Conference culminated in the Hague Convention On The Service Abroad Of Judicial And Extrajudicial Documents In Civil Or Commercial Matters,³ which was opened for signature on November 15, 1965. Id. The purpose of the contracting states in adopting the Convention was to ensure timely notice to litigants and multilateral judicial efficiency. The heart of the Convention was a requirement that each signatory state both establish a Central Authority for receiving requests for service from litigants in signatory states and execute such foreign service requests. Id., § 4-3-1. However, use of the Central Authority for service is not mandatory; Articles 8 through 11 provide for alternate methods of service. Id., § 4-3-5. At issue in this case is whether section (a) of Article 10 provides one of those alternate methods of service.

Plaintiff argues that Article 10(a) of the convention provides for service by mail; defendant argues that it does not. Article 10(a) provides, in relevant part:

Provided the State of destination does not object, the present Convention shall not interfere with —

(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.

The issue is whether the word "send" in this context refers to service of process.

Neither Supreme Court nor the Ninth Circuit have decided this issue. In the federal courts, two distinct lines of cases interpreting Article 10(a) have emerged. In Ackermann v. Levine, 788 F.2d 830 (2d Cir.1986),⁴ the Second Circuit interpreted the word "send" in Article 10(a) to mean "service". The court looked to the overall purpose and structure of the treaty, and, citing to a California state court case with approval⁵, reasoned that 10(a) would be superfluous unless it referred to sending documents for service. The court reconciled the variance in terminology between "send" in Article 10(a) and "effect service" in Article 10(b) and (c) by attributing it to "careless drafting". Id. at 839.

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