Moore v. Toyota Motor Corporation et al
ORDER regarding 32 and 45 Motions to Dismiss for Lack of Jurisdiction. For the foregoing reasons, Toyota Motor Corporation's motion is granted in part. IT IS ORDERED that plaintiff serve process on Toyota Motor Corporation within 60 days of this order. Toyoda Gosei's motion is granted. Plaintiff's claims against Toyoda Gosei are DISMISSED WITHOUT PREJUDICE. Signed by Judge Sarah S. Vance on 11/13/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT L. MOORE
TOYOTA MOTOR CORPORATION,
SECTION “R” (5)
ORDER AND REASONS
Defendants Toyota Motor Corporation and Toyoda Gosei Co., Ltd each
move to dismiss.1 For the following reasons, the Court orders plaintiff to
effectuate proper service on Toyota Motor Corporation within 60 days.
Further, the Court dismisses plaintiff’s claims against Toyoda Gosei.
This case arises out of an allegedly defective airbag in Plaintiff Robert
Moore’s Toyota Corolla. 2 On January 24, 2016, plaintiff was involved in an
automobile accident. 3 Plaintiff alleges that his airbag deployed suddenly and
R. Doc. 32; R. Doc. 45.
R. Doc. 20 at 5-7.
Id. at 5 ¶ 2.
severely injured him.4 On August 22, 2016, plaintiff brought a pro se petition
in state court against Toyota Motor Corporation and Takata Corporation. 5
On January 23, 2017, plaintiff, through counsel, filed an amended
petition in state court naming TK Holdings, Inc. and Toyota Motor Sales,
U.S.A. as additional defendants.6 The amended petition requested service
on these two defendants.7 On February 15, 2017, Toyota Motor Sales and TK
Holdings removed the matter to this Court on the basis of diversity of
citizenship. 8 The notice of removal indicates that Toyota Motor Corporation
and Takata Corporation were not served with process before removal.9
On April 24, 2017, plaintiff filed a motion for leave to file an amended
complaint. 10 Plaintiff’s proposed amended complaint named Toyota Motor
Engineering & Manufacturing North America, Inc. as an additional
defendant.11 Magistrate Judge North granted leave to amend, but directed
plaintiff to delete all causes of action except those arising under the Louisiana
Products Liability Act. 12
On June 15, 2017, plaintiff filed an amended
Id. at 5-6.
R. Doc. 1-2 at 1.
Id. at 2.
Id. at 5.
R. Doc. 1 at 1-2.
Id. at 3 ¶ 7.
R. Doc. 13.
R. Doc. 13-4 at 3.
R. Doc. 18.
complaint naming Toyoda Gosei Co., Ltd as an additional defendant. 13 The
record does not indicate that plaintiff either requested or received leave to
join Toyoda Gosei as a defendant in this matter.
Plaintiff’s counsel represents that Toyoda Gosei Co. LTD-North
America was served with process on June 29, 2017, and Toyoda Gosei
Co., Ltd. and Toyota Motor Corporation were each served on July 10, 2017. 14
Toyoda Gosei Co. LTD-North America is not a defendant in this matter.
Toyota Motor Corporation and Toyoda Gosei are both Japanese
corporations.15 They each move to dismiss on the basis of invalid service of
If a party is not validly served with process, proceedings against that
party are void. Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design,
Inc., 635 F.2d 434, 435 (5th Cir. 1981).
When service of process is
challenged, “the plaintiff bears the burden of establishing its validity.”
Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir.
1992). Service on a corporate defendant located outside the United States is
R. Doc. 20 at 3.
R. Doc. 42-1 at 1.
R. Doc. 32 at 1; R. Doc. 45-1 at 3.
R. Doc. 32; R. Doc. 45.
governed by Federal Rule of Civil Procedure 4(f). See Fed. R. Civ. P. 4(h)(2).
The Fifth Circuit has explained that “Rule 4(f) authorizes a without-prejudice
dismissal when the court determines in its discretion that the plaintiff has
not demonstrated reasonable diligence in attempting service.” Lozano v.
Bosdet, 693 F.3d 485, 489 (5th Cir. 2012). But if the statute of limitations is
likely to bar future litigation, dismissal is appropriate only if there exists “a
clear record of delay or contumacious conduct by the plaintiff.” Id. at 48990 (internal citation and quotation marks omitted).
The Hague Service Convention is a multilateral treaty intended to
facilitate service of process abroad and ensure defendants sued in foreign
jurisdictions receive actual and timely notice of suit. See Volkswagenwerk
Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988). The United States
and Japan are signatories to the Convention.17 The treaty requires each
signatory country to establish a central authority, which receives judicial
documents and serves them on parties within the country in accordance with
that country’s law. Id. at 698-99. The Hague Service Convention also
permits service by mail under certain circumstances. See Water Splash, Inc.
v. Menon, 137 S. Ct. 1504, 1513 (2017).
R. Doc. 32-1 at 4.
A. Toyota Motor Corporation
The record indicates that plaintiff’s counsel attempted to serve Toyota
Motor Corporation in Japan through the United States Postal Service. 18 The
Supreme Court has explained that, under the Hague Service Convention,
“service by mail is permissible if two conditions are met: first, the receiving
state has not objected to service by mail; and second, service by mail is
authorized under otherwise-applicable law.” Water Splash, 137 S. Ct. at 1513
(citing Brockmeyer v. May, 383 F.3d 798, 803-04 (9th Cir. 2004)).
For service by mail to be proper, plaintiff must show that it was
affirmatively authorized by applicable law. Plaintiff argues that service by
mail is permissible under Louisiana’s long-arm statute. 19
attempted to serve Toyota Motor Corporation in July 2017, several months
after this matter was removed to federal court. 20 Plaintiff is therefore
required comply with federal rules regarding service of process.
See 28 U.S.C. § 1448; Fed. R. Civ. P. 81(c)(1).
Service by regular international mail is not authorized by applicable
federal law. Rule 4(f) provides that an individual may be served in a foreign
R. Doc. 42-4; R. Doc. 42-5; R. Doc. 45-1 at 3.
R. Doc. 51 at 3.
R. Doc. 42-1.
country “by 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.” Fed. R.
Civ. P. 4(f)(1). Here, it is undisputed that plaintiff did not attempt service
through Japan’s central authority or any other internationally agreed means.
Rule 4(f) also permits service in a foreign country “using any form of
mail that the clerk addresses and sends to the individual and that requires a
signed receipt.” Fed. R. Civ. P. 4(f)(2)(C)(ii). This provision is not applicable
because service was sent to Toyota Motor Corporation by plaintiff’s counsel,
not the clerk. Moreover, plaintiff’s return receipt does not indicate that the
item was delivered, and plaintiff has not provided other proof of actual
No other provision of federal law affirmatively authorizes
plaintiff’s method of service. See Brockmeyer, 383 F.3d at 804-05 (holding
that Rule 4(f) affirmatively authorizes service by mail only if directed by the
district court, or if notice is sent by the clerk of court through a form of mail
that requires a signed receipt); cf. Lozano v. Bosdet, 693 F.3d at 488 (noting
that corporations outside the United States can be reached by mail under
Rule 4(d)’s provision for waiver of service).
The box for “[t]he article mentioned above was duly delivered” is
unchecked. See R. Doc. 42-5.
Plaintiff has therefore failed to show that he properly served Toyota
Motor Corporation. Toyota Motor Corporation moves to dismiss, or in the
alternative, asks the Court to order plaintiff to effectuate proper service
within a specified time period. 22 Plaintiff requests 60 days to re-serve Toyota
Motor Corporation. 23 Because plaintiff has made some attempt at service
and Toyota Motor Corporation has received notice of this suit, the Court
finds that plaintiff should be afforded one more opportunity to serve
defendant. See Lozano, 693 F.3d at 489. Plaintiff is ordered to properly
serve Toyota Motor Corporation within 60 days.
B. Toyoda Gosei
Toyoda Gosei represents that plaintiff’s only attempt at service of
process was to send a copy of the amended complaint via certified mail to
Toyoda Gosei’s North American subsidiary, Toyoda Gosei North America
Corporation. 24 Toyoda Gosei argues that service on its American subsidiary
is improper under the Hague Service Convention.25 In response, plaintiff
asserts that service by mail is proper, but does not address Toyoda Gosei’s
argument regarding the validity of service on a subsidiary. 26
R. Doc. 45 at 2.
R. Doc. 51 at 4.
R. Doc. 32-1 at 2.
Id. at 4-5.
R. Doc. 52.
The Supreme Court has held that service on the domestic subsidiary of
a foreign corporation can be proper if, under the law of the forum state, the
subsidiary is the foreign corporation’s involuntary agent for service of
process. Schlunk, 486 U.S. at 696, 706-07. Plaintiff has cited no authority
to suggest that Toyoda Gosei North America Corporation is Toyoda Gosei’s
agent under Louisiana law. See Blades v. Il. Cent. R. Co., No. 02-3121,
2003 WL 1193662, at *3 (E.D. La. 2003) (finding that Louisiana law does not
transform a domestic subsidiary into the agent of the parent company for
service of process).
Plaintiff has therefore not satisfied his burden of
demonstrating valid service of process through service on a subsidiary. Nor
does plaintiff provide evidence that he effectuated service upon Toyoda Gosei
in Japan. 27 To the extent plaintiff argues that he served Toyoda Gosei by
international mail, this method of service is improper for the reasons
Plaintiff asks that he be granted 60 days to re-attempt service on
Toyoda Gosei. 28 This request is denied. As noted above, it appears that
Toyoda Gosei was improperly joined in this matter because plaintiff did not
Plaintiff asserts that Toyoda Gosie has acknowledged that a certified
copy of the summons was mailed to it in Japan via registered mail.
See R. Doc. 52 at 3. But no such acknowledgment appears in Toyoda
R. Doc. 52 at 4.
request or receive the Court’s leave to add it as a defendant. 29 Moreover, the
statute of limitations is not a significant consideration because the applicable
one-year prescriptive period expired before Toyoda Gosei was added as a
defendant. See La. Civ. Code art. 3492; Jenkins v. Bristol-Myers Squibb Co.,
689 F. App’x 794, 795 (5th Cir. 2017). If plaintiff has a valid argument why
his claims against Toyoda Gosei are not time-barred, he remains free to raise
it in the future. Plaintiff’s claims against Toyoda Gosei are dismissed without
For the foregoing reasons, Toyota Motor Corporation’s motion is
granted in part. IT IS ORDERED that plaintiff serve process on Toyota
Motor Corporation within 60 days of this order.
Toyoda Gosei’s motion is granted. Plaintiff’s claims against Toyoda
Gosei are DISMISSED WITHOUT PREJUDICE.
New Orleans, Louisiana, this _____ day of November, 2017.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
See R. Doc. 13; R. Doc. 18; R. Doc. 20.
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