Rivers v. Stihl, Inc.
| Decision Date | 27 May 1983 |
| Citation | 434 So.2d 766 |
| Court | Alabama Supreme Court |
| Parties | Robert Wayne RIVERS and Debra Ann Rivers v. STIHL, INC. and L & L Saw and Cycle Shop, Inc. Ex parte: Robert Wayne RIVERS and Debra Ann Rivers (In re: Robert Wayne RIVERS and Debra Ann Rivers v. L & L SAW AND CYCLE SHOP, INC., Stihl, Inc., Andreas Stihl American Inc., and/or Williams, Craig, and Neer, et al.) 81-868, 81-989. |
J.H. Fernandez of Allen & Fernandez, and Patrick M. Sigler, Mobile, for appellants/petitioners.
J. Harley McDonald, Jr. of Nettles, Barker & Janecky, Mobile, and William H. Robinson, Jr. of McGuire, Woods & Battle, Richmond, Va., for appellee/respondent Stihl, Inc.
Douglas L. Brown of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees/respondents L & L Saw and Cycle Shop, Inc.
This is a products liability action brought by Robert and Debra Rivers arising out of personal injuries to Mr. Rivers caused by "kick-back" from a Stihl chain saw. Plaintiffs seek a writ of mandamus to the Circuit Court of Mobile County to review that court's ruling that service of process was not perfected on the manufacturer, Andreas Stihl KG, a commercial partnership in West Germany. Plaintiffs also appealed the granting of a summary judgment in favor of two other defendants, Stihl, Inc., Andreas Stihl's wholly owned United States subsidiary which markets Stihl chain saws in this country, and L & L Saw and Cycle Shop, Inc., which sold the chain, bow, and sprocket which were mounted on the chain saw at the time of the incident forming the basis of the action. The petition for writ of mandamus and the appeal from the summary judgments have been consolidated for review.
The petition for writ of mandamus involves the question of jurisdiction over the defendant, Andreas Stihl. The defendant did not question its amenability to service of process by Alabama courts, but took the position that service of process had not been perfected on it. Resolution of the issue depends on a construction of the Hague Convention on The Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of November 15, 1965 (The Hague Convention).
The United States and the Federal Republic of Germany (West Germany) are signatories of the Hague Convention. See Vol. VII, Martindale-Hubbell Law Directory, Part VII, pp. 1-8 (1983). The convention was drafted to simplify and expedite the service of judicial and extrajudicial documents between nations and to ensure that recipients are served in sufficient time to allow them to act. (Preamble). It applies in all cases concerning civil or commercial matters wherein documents are transmitted abroad between those in signatory countries. (Article 1).
The convention provides that each state is to designate a central authority to receive requests for service of documents. (Article 2). Requests for service (which must conform to a model annexed to the convention) should be sent, along with the documents in question, by the judicial officer of the state in which the documents originate to the designated central authority of the country in which the recipient is located. (Article 3). When it receives a request, the central authority is to arrange service according to its internal laws. (Article 5). Once service is perfected, the central authority must forward a certificate to that effect to the applicant. (Article 6). If the request is insufficient for some reason, the central authority returns it and the unserved documents, along with a statement of its objections, to the applicant. (Article 4).
The convention also prescribes several alternative methods of service, including service by postal channels directly to the recipient, but allows signatory countries to object to the alternative methods. (Article 10). West Germany has made such an objection and has specified that all documents must be served through the central authority and must be translated into German. See VII Martindale-Hubbell Part VII, pg. 4, paragraphs 7a (1) and (4) (1983).
Article VI of the United States Constitution provides that the States are bound by treaties entered into by the United States. Therefore, service must be perfected according to the terms of the Hague Convention, even though ARCP 4.4(b) provides several methods of serving process in foreign countries, including service directly on the defendant by certified mail or its equivalent. ARCP 4.4(b)(1). See Dr. Ing. H.C.F. Porsche v. Superior Court, 123 Cal.App.3d 755, 177 Cal.Rptr. 155 (1981).
The plaintiffs began their attempts to serve Andreas Stihl in July of 1980. They attempted to perfect service by certified mail several times. Copies of the summons and complaint were sent directly to Andreas Stihl in West Germany on three occasions, once in English, once in German, and once in both languages. Copies were also sent to Stihl, Inc., an American corporation, on the theory that it was Andreas Stihl's agent. After each attempt, service was quashed on Andreas Stihl's motion.
In September, 1981, plaintiffs requested the clerk to send a copy of the summons and complaint to the Ministry of Justice of Baden-Wiirtemberg. The minister returned the summons and complaint unserved along with his objections. He stated that the documents were not accompanied by a request form conforming to the model annexed to the convention and that the German translation of the documents was not placed on a separate page from the English. Another motion to quash was granted by the trial court.
In December, 1981, plaintiffs requested that two separate copies of the summons and complaint, one in English and one in German, be sent to the minister. Another letter from the minister was shortly forthcoming. He indicated that the requirement of duplicate copies meant two copies in each language. He also noted the omission of the requisite request form.
Pursuant to the plaintiffs' latest attempted service, the clerk of the trial court had sent the summons and complaint to the minister of justice by certified mail. Upon receiving the return receipt signed by someone at the ministry, the clerk made an entry on the case action summary sheet denoting perfection of service of process on Andreas Stihl. In response to the entry on the summary sheet denoting service, attorneys for Andreas Stihl in Mobile requested, and were granted, an extension of time to respond. After discovery that the summons and complaint had not been forwarded by the minister to Andreas Stihl, the defendant moved for, and was granted, an order directing the clerk to change the case action summary sheet to reflect the fact that service had not been perfected.
The plaintiffs seek a writ compelling the trial court to reinstate the notation on the civil action summary sheet indicating that service of process has been perfected on Andreas Stihl, or to order that the necessity of service of process has been waived.
Since West Germany has objected to service within its borders by any method other than through the minister of justice, plaintiffs' attempts to serve the defendant by certified mail were ineffective. Plaintiffs were also unsuccessful in their efforts to serve the defendant through the minister of justice, because they failed to send the proper request form and failed to send duplicate copies of the summons and complaint in each language. Therefore, since the procedure outlined in the Hague Convention was not followed, service of process was not perfected.
We cannot accept plaintiff's arguments that the minister's reliance on "unfounded claims and minor technicalities" should not be allowed to defeat plaintiffs' efforts to serve Andreas Stihl. Plaintiffs failed to complete two copies of a request form (in English) which must accompany the documents to be served. (Hague Convention, Article 3). Copies of the form are annexed to the convention and are available through the United States Marshals. Plaintiffs must also have the clerk send four separate copies (two in each language) of the summons and complaint along with the copies of the request. We do not find these requirements to be unduly onerous, nor do we find that the plaintiffs have complied with them.
In so ruling we do not intend to allow a recalcitrant governmental official in Germany to unjustifiably prevent plaintiffs from obtaining service on the defendant. In such a case the convention would not prevent the trial court from proceeding as to Andreas Stihl. The convention prohibits judgments from being taken against defendants who have not appeared until service has been perfected by delivery via the minister of justice. (See Article 15). Here, Andreas Stihl has had actual notice, has appeared by way of motions and has participated in depositions of the plaintiffs. In the future, should the minister of justice unjustifiably refuse to forward the summons and complaint after plaintiffs have complied with the applicable provisions of the convention, we will treat Andreas Stihl as having been served.
Plaintiffs also argued that Andreas Stihl has waived service. ARCP 12(g) requires that:
[Failure to state a claim upon which relief can be granted or failure to join an indispensable party.]
The defense of insufficiency of process is waived if not included in a Rule 12 motion. ARCP 12(h)(1).
After plaintiffs' last attempt to serve Andreas Stihl by certified mail and before their attempts to serve the defendant through the minister of justice, the...
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