Randolph v. Hendry

• Citation: 50 F.Supp.2d 572
• Decision Date: 11 May 1999
• Docket Number: Civil Action No. 6:99-0253.
• Parties: Debra Z. RANDOLPH, Plaintiff, v. Martin HENDRY, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

Page 572

50 F.Supp.2d 572

Debra Z. RANDOLPH, Plaintiff, v. Martin HENDRY, Defendant.

Civil Action No. 6:99-0253.

United States District Court, S.D. West Virginia, Parkersburg Division.

May 11, 1999.

Thomas Munchmeyer, William O. Merriman, Jr., Cosenza, Underwood & Merriman, Parkersburg, WV, for plaintiff.

J. Rudy Martin, Cortland C. Potbrese, Jackson & Kelly, Charleston, WV, for defendant.

MEMORANDUM OPINION AND ORDER

GOODWIN, District Judge.

Pending before the Court is the motion of the defendant to dismiss this case pursuant to Rule 12(b)(1), (2), (4), and (5) of the Federal Rules of Civil Procedure. The memorandum accompanying the motion addresses only the Rule 12(b)(5) justification — dismissal based upon insufficiency of service of process. The Court's clerk, with notice to the defendant, contacted the plaintiff's counsel to remind him of his obligation to respond to the motion, yet the plaintiff failed to respond. Rather, plaintiff's counsel mailed to the Court many days later an unfiled motion requesting additional time to respond.¹ Nevertheless, with respect to the Rule 12(b)(1), (2), and (4) bases for dismissal, the motion is DENIED without prejudice pursuant to Local Rule 7.1(a), which requires Rule 12(b) motions to be supported by memoranda.² With respect to the Rule 12(b)(5) justification, the motion is DENIED AS PREMATURE without prejudice.

I.

The plaintiff Debra Randolph filed this action in the Circuit Court of Wood County, West Virginia, on January 20, 1999. In her complaint, Randolph alleged that the defendant, Canadian resident Martin Hendry, had negligently driven his vehicle through a red light on January 24, 1997 in Wood County, causing his vehicle to strike the vehicle in which Randolph was traveling. Randolph further alleged that she suffered "great pain of body and mind," among other injuries, as a direct and proximate result of the collision.

The relevant facts are not in dispute. Because the defendant is a not a resident of West Virginia, and this action is one concerning the operator of a motor vehicle involved in an accident, the plaintiff sought to avail herself of the service-of-process procedures outlined in West Virginia Code section 56-3-31(e). That subsection provides:

Service of process upon a nonresident shall be made by leaving the original and two copies of both the summons and complaint, together with the bond certificate of the clerk, and the fee ... with the secretary of state ... and said service shall be sufficient upon the nonresident defendant ... Provided, That notice of service and a copy of the summons and complaint shall be sent by registered or certified mail, return receipt requested, by the secretary of state to the nonresident defendant. The return receipt signed by the defendant or his or her duly authorized agent shall be attached to the original summons and complaint and filed in the office of the clerk of the court from which process is issued. In the event the registered or certified mail sent by the secretary of state is refused or unclaimed by the addressee or if the addressee has moved without any forwarding address, the registered or certified mail returned to the secretary of state, or to his or her office, showing thereon the stamp of the post-office department that delivery has been refused or not claimed or that the addressee has moved without any forwarding address, shall be appended to the original summons and complaint and filed in the clerk's office of the court from which process issued.

W. VA. CODE § 56-3-31(e) (Supp.1998).

It appears that the plaintiff indeed caused the Secretary of State to attempt to effect service upon the defendant by use of registered mail, return receipt requested. However, it also appears that the registered mail sent by the Secretary of State was unclaimed by the defendant, and was thus returned to the Secretary of State and thereafter filed in the clerk's office.

As contemplated by the West Virginia Code, the plaintiff next attempted to effect service utilizing the procedures outlined in section 56-3-31(g). That subsection provides:

In the event service of process upon a nonresident defendant cannot be effected through the secretary of state as provided by this section, service may be made upon the defendant's insurance company. The plaintiff must file with the clerk of the circuit court an affidavit alleging that the defendant is not a resident of this state; that process directed to the secretary of state was sent by registered or certified mail, return receipt requested; that the registered or certified mail was returned to the office of the secretary of state showing the stamp of the post-office department that delivery was refused or that the notice was unclaimed or that the defendant addressee moved without any forwarding address; and that the secretary of state has complied with the provisions of subsection (e) herein. Upon receipt of process the insurance company may, within thirty days, file an answer or other pleading and take any action allowed by law in the name of the defendant.

Id. § 56-3-31(g).

The plaintiff served the summons and complaint upon the defendant's insurance company's claims adjuster, Fred Rusmisell, by certified mail at his Clarksburg, West Virginia address on March 11, 1999. She subsequently filed the return receipt. A review of the Circuit Court of Wood County docket sheet in this case does not reveal that the plaintiff filed an accompanying affidavit. (See Notice of Removal, at Ex. 2.)

II.

It is well-established that state law governs whether service of process is properly effected prior to removal. See Eccles v. National Semiconductor Corp., 10 F.Supp.2d 514, 519 (D.Md.1998); 4A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1082 (2d ed. 1987 & Supp.1999). The defendant argues that the acts taken by the plaintiff to effect service were insufficient under West Virginia law.³ The defendant also argues that the acts taken by the plaintiff to effect service were insufficient because they did not conform to the requirements of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. Nov. 15, 1965, 20 U.S.T. 361 [hereinafter Hague Convention].

A.

The Hague Convention is a multinational treaty formulated in 1964, approved by representatives of the twenty-three states that were members of the Tenth Session of the Hague Conference of Private International Law, and ratified or accessioned to by at least thirty-six states, including the United States and Canada. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). Self-executing because it establishes affirmative and judicially enforceable obligations on its own terms without benefit of subsequent implementing legislation, the Hague Convention is considered to be of equal dignity with acts of Congress. Vorhees v. Fischer & Krecke, 697 F.2d 574, 575 (4th Cir.1983). The Hague Convention, through the Supremacy Clause, thus preempts conflicting state law. As the United States Supreme Court stated in Volkswagenwerk, "[b]y virtue of the Supremacy Clause, U.S. Const., Art. VI, the Convention pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies." Volkswagenwerk, 486 U.S. at 699, 108 S.Ct. 2104.

Article 1 of the Hague Convention provides unambiguously that its terms apply "in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad."⁴ Hague Convention, 20 U.S.T. at 362; Volkswagenwerk, 486 U.S. at 700, 108 S.Ct. 2104. The Convention does not specify when there is "occasion to transmit" a complaint "for service abroad." Volkswagenwerk, 486 U.S. at 700, 108 S.Ct. 2104.

The Convention allows the law of the applicable forum — here, the laws of the state of West Virginia prior to removal — to describe what steps constitute service of process. Under West Virginia's Nonresident Operators of Motor Vehicles law as applied to this case, service of process is not effective unless the plaintiff has caused a transmission for service abroad. See W. VA. CODE § 56-3-31; Curcuruto v. Cheshire, 864 F.Supp. 1410, 1411 (S.D.Ga. 1994) (finding that Hague Convention applies to service pursuant to similar Georgia non-resident motorist statute); Quinn v. Keinicke, 700 A.2d 147, 154 (Del.Super.Ct.1996) (invalidating service under similar Delaware non-resident motorist statute on identical grounds). That is true, regardless of whether service is ultimately completed through service directly of the individual nonresident defendant or indirectly through service of the insurance company. If service is to made directly upon the defendant, West Virginia Code section 56-3-31(e) requires that the plaintiff cause the Secretary of State to transmit the summons and complaint to the defendant by registered mail. W. VA. CODE § 56-3-31(e). If service is ultimately to be effected by serving the defendant's insurance company, the West Virginia Code still requires that the plaintiff first attempt to serve the defendant directly by registered mail and that the plaintiff obtain a receipt marked "refused" or "unclaimed" or an indication that the defendant moved without any forwarding address. Id. § 56-3-31(g).

West Virginia Code section 56-3-31 requires the transmission of documents in order to effect service of process abroad. A plaintiff seeking to avail herself of that section's provisions must therefore comply with the requirements of the Hague Convention.

B.

The purpose of the Hague Convention is to articulate and establish an efficient method of effecting service of documents internationally. Hague Convention, 20 U.S.T. at 362; Koehler v. Dodwell, 152 F.3d 304, 307 (4th Cir.1998). With that intent, the Hague Convention sets forth several mechanisms for effecting service with the primary one set forth in Articles 2 through 7. See Hague...