Thach v. Tiger Corp.

• Decision Date: 23 June 2010
• Docket Number: No. 09-2940.,09-2940.
• Citation: 609 F.3d 955
• Parties: Oanh THACH, individually and as Special Administrator of the Estate of Deceased Pearl Wang; Kim Thach, as Special Administrator of the Estate of Deceased Jimmy Hua; Kim Thach, as Special Administrator of the Estate of Deceased Michelle Huynh, Plaintiffs-Appellants,v.TIGER CORPORATION, Defendant-Appellee,Tiger America Corporation, which will do business in California as Tiger U.S.A. Corporation, doing business as Tiger U.S.A. Corporation; Japan Tiger Corporation of U.S.A., Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

609 F.3d 955

Oanh THACH, individually and as Special Administrator of the Estate of Deceased Pearl Wang; Kim Thach, as Special Administrator of the Estate of Deceased Jimmy Hua; Kim Thach, as Special Administrator of the Estate of Deceased Michelle Huynh, Plaintiffs-Appellants,v. TIGER CORPORATION, Defendant-Appellee,Tiger America Corporation, which will do business in California as Tiger U.S.A. Corporation, doing business as Tiger U.S.A. Corporation; Japan Tiger Corporation of U.S.A., Defendants.

No. 09-2940.

United States Court of Appeals Eighth Circuit.

Submitted: May 11, 2010.

Filed: June 23, 2010.

Rehearing and Rehearing En Banc Denied July 29, 2010.

William Fuller, argued and on the brief (Hilary L. Williamson and William C. Garry, on the brief), Sioux Falls, SD, for appellants.

Brian N. Johnson, argued and on the brief, Minneapolis, MN (Sheila T. Kerwin, Minneapolis, MN, James E. McMahon and Rochelle R. Cundy, Sioux Falls, SD, on the brief), for appellee.

Before RILEY, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Oanh and Kim Thach brought this negligence, products liability, and breach of warranty action against Tiger Corporation, the Japanese manufacturer of a rice cooker which allegedly caused a fire at their home. The district court ¹ granted Tiger judgment on the pleadings, finding that the Thachs had failed to serve it within South Dakota's three year statute of limitations. The Thachs appeal, contending that the limitations period was tolled when they delivered the summons and complaint to Japan's central authority for processing under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (the Hague Convention). We affirm.

I

On December 11, 2004 a JCC rice cooker manufactured by Tiger allegedly caused a fire and damage at the Thachs' Sioux Falls home, seriously injuring Oanh and causing the deaths of Pearl Wang, Jimmy Hua, and Michelle Huyn. Almost three years later, on November 6, 2007 the Thachs filed this action against Tiger and its U.S. distributors, Japan Tiger Corporation of U.S.A. (Tiger U.S.A.) and Tiger America Corporation (Tiger America).

South Dakota provides a three year statute of limitations for product liability actions so the Thachs were required to serve each defendant with a summons and complaint by December 11, 2007. See S.D. Codified Laws §§ 15-2-12.2, 15-2-30. They served Tiger U.S.A. (identified on Tiger's “Global Site” web site as its “Representative Office in [the] U.S.A.”) on November 15, 2007 and Tiger America on November 26. Tiger U.S.A. forwarded the summons and complaint to Tiger, and on December 3 the two filed a joint answer contending that Tiger had not been properly served.

The Thachs hired a private process server, APS International, Ltd., to serve Tiger in Japan in accordance with the Hague Convention:

The Hague Service Convention is a multilateral treaty ... intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions ... receive actual and timely notice of suit, and to facilitate proof of service abroad.... The primary innovation of the Convention is that it requires each state to establish a central authority to receive requests for service of documents from other countries. 20 U.S.T. 362, T.I.A.S. 6638, Art. 2. Once a central authority receives a request in the proper form, it must serve the documents by a method prescribed by the internal law of the receiving state or by a method designated by the requester and compatible with that law. Art. 5.

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698-99, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988) (some citations omitted).

Japan is a signatory to the Hague Convention, and the Ministry of Foreign Affairs (the Ministry) is its designated central authority. APS delivered the Thachs' summons and complaint with a proper request for service to the Ministry, which stamped it as received on “19.12.07.” The summons and complaint were then served on Tiger by mail at its Osaka, Japan headquarters on January 24, 2008, over a month after the South Dakota limitations period had expired on December 11, 2007.²

Tiger moved for judgment on the pleadings under Fed.R.Civ.P. 12(c), asserting that the statute of limitations had run before it was served. In its reply memorandum in support of the motion, Tiger represented that the Ministry date stamp “19.12.07” signified December 19, 2007, showing its receipt of the request for service eight days after the limitations period expired. On appeal the Thachs contend that under the Japanese calendar “19.12.07” is actually equivalent to December 7, 2007, so delivery to the Ministry was timely. They claim that their inability to file a surreply precluded them from making that argument to the district court.

The district court granted Tiger judgment on the pleadings after concluding that the Thachs had not complied with the statute of limitations. It also granted summary judgment to Tiger America and Tiger U.S.A. on the ground that they could not have distributed the Thachs' rice cooker because they were not yet in existence at the time the Thachs purchased it. The Thachs appeal the grant of judgment on the pleadings to Tiger and request we take judicial notice that:

(1) The traditional Japanese calendar is based on the reign of its emperors and is used for official governmental documents. (2) The year 2007 AD was the nineteenth year of the Heisei Era, the reign of Emperor Akihito. (3) Therefore, an official Japanese government document stamped with the date “19-12-07” would, under the Western calendar, be December 7, 2007.

We may assume without deciding that the Ministry received the request for service when the Thachs say it did, for we conclude that issue does not affect our disposition of this case.

II

We review de novo a district court's grant of judgment on the pleadings. Poehl v. Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir.2008). Judgment on the pleadings is appropriate if, assuming as true all facts pleaded by the nonmoving party and according it all reasonable inferences, no material issue of fact remains and the moving party is entitled to judgment as a matter of law. Id. Jurisdiction is based on diversity of citizenship, and all parties agree that the substantive law of South Dakota controls. See Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see also Paracelsus Healthcare Corp. v. Philips Med. Sys., Nederland, B.V., 384 F.3d 492, 495 (8th Cir.2004) (statutes of limitations governed by state law in diversity actions).

A

The Thachs contend that they were unable to serve Tiger within the limitations period because the Hague Convention required them to effect service through the Ministry but did not bind the Ministry to complete service within any specified period of time. They assert that in these circumstances § 15-2-25 should toll the limitations period until the Ministry actually effects service. Under that interpretation of § 15-2-25 the limitations period was tolled on December 7, 2007 when the Ministry received the Thachs' request for service-four days prior to the December 11 deadline.

Section 15-2-25 tolls the limitations period when a plaintiff is prohibited by injunction or statute from commencing an action. See id. (“When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.”). The Thachs do not claim that the Hague Convention's requirement that service be effected through the relevant central authority acts as an injunctive or statutory bar on a plaintiff's ability to commence an action. Rather, they assert that the Convention is a positive rule of law that should trigger tolling under § 15-2-25 just like an injunction or statutory prohibition.

That argument finds some support in the South Dakota Supreme Court decision in Loesch v. City of Huron, 723 N.W.2d 694 (S.D.2006). While discussing the scope of § 15-2-25's tolling provision, the court quoted with approval the California Supreme Court interpretation of Cal. Civ. Proc. § 356, a statute “identical to [§ ] 15-2-25”: “ ‘It is well recognized that the running of the statute of limitations is suspended during any period in which the plaintiff is legally prevented from taking action to protect his rights.’ ” Id. at 698 (quoting Dillon v. Bd. of Pension Comm'rs of L.A., 18 Cal.2d 427, 116 P.2d 37, 39 (1941) (Traynor, J.)).

Tiger urges that the Thachs waived reliance on § 15-2-25 by failing to raise it before the district court. Generally, “issues not presented to the trial court will not be considered on appeal.” Am. Gen. Fin. Corp. v. Parkway Bank & Trust Co., 520 F.2d 607, 608 (8th Cir.1975). Moreover, “where the defendant asserts the statute of limitations as a bar to the action, and presumptively establishes [it], the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute.” Kurylas, Inc. v. Bradsky, 452 N.W.2d 111, 117 (S.D.1990).

The Thachs respond that the district court was prevented from considering § 15-2-25 because Tiger erroneously represented that the Ministry had received the request for service on December 19, 2007, after the limitations period had already run. They claim they were unable to respond to that representation at the time since Tiger first made it in its reply memorandum in support of its motion for judgment on the pleadings. They say that the district court would have considered § 15-2-25 if it had been aware that the Ministry's “19.12.07” date stamp signified December 7, 2007 as they urge.

In granting Tiger judgment on the pleadings, however, the district court did not even mention the December 19, 2007 date. It had no reason to, for the date that...