National Casualty Company v. Western Express Inc et al
Filing
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ORDER denying 66 Defendant Cardena's Motion to Dismiss, as more fully set out. Signed by Honorable David L. Russell on 5/22/17. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
NATIONAL CASUALTY
COMPANY,
Plaintiff,
v.
WESTERN EXPRESS, INC;
THOMAS R.J. SCHNEIDER;
TIMOTHY FISHER; JAMES
CIRTTENDEN; ADAM FACTOR;
GORGIS ORI; VALENTINA
CHMIL; VICTORIA CARDENAS;
and DENNIS BUTLER, as Special
Administrator of the Estate of
CARLOS DeSANTIAGO,
Defendants.
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Case No. CIV-15-1222-R
ORDER
Before the Court is the Motion to Dismiss filed by Defendant Valentina Cardenas
(Doc. No. 66). Plaintiff responded in opposition to the motion and Defendant Cardenas
filed a reply in support of her position. Having considered the parties’ submissions, the
Court finds as follows.
As the parties are well aware, National Casualty filed this declaratory judgment
action seeking a determination regarding the extent of its liability for coverage of its
insured, Western Express, Inc., for damages resulted from a March 31, 2012 multi-vehicle
accident. The accident was the catalyst for multiple lawsuits in both state and federal court,
and a number of these claims remain outstanding pending the conclusion of certain
litigation before the Oklahoma Court of Civil Appeals. The Defendants herein were parties
to either state or federal litigation, or both. Defendant Cardenas, who is a resident of
Mexico, seeks dismissal of the Complaint arguing insufficiency of service of process,
failure to comply with the Hague Convention, improper service under the laws of Mexico,
and violation of due process. She further argues that the Court should exercise its discretion
and dismiss this declaratory judgment action in light of the aforementioned appeal pending
before the Oklahoma Court of Civil Appeals.
The instant motion has its genesis in a prior Order of this Court, whereby it granted
Plaintiff leave to effect service upon Ms. Cardenas, a resident of Mexico, by serving her
Oklahoma-based counsel. Ms. Cardenas is represented by current counsel in the underlying
litigation wherein she seeks to recover for losses related to the accident. Counsel, the same
firm and attorneys who filed the instant motion, previously represented to the Court that
Ms. Cardenas did not authorize them to accept service on her behalf and they would not
agree to accept service. In an Order dated September 21, 2016, the Court authorized service
upon Zelbst, Holmes and Butler, concluding that the Hague Convention did not apply
because service would not be transmitted abroad. The Court further concluded that counsel
had obviously been in contact with Ms. Cardenas and that service upon counsel would
result in notice to Ms. Cardenas. Following service, which Plaintiff apparently
accomplished electronically, Defendant filed the instant motion.
Ms. Cardenas first argues the Complaint against her should be dismissed for
insufficiency of service of process pursuant to Rule 12(b)(5) of the Federal Rules of Civil
Procedure. With regard to service at a place not within any judicial district of the United
States, such as Mexico, Rule 4(f)(1) of the Federal Rules of Civil Procedure permits service
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“by any internationally agreed means of service that is reasonably calculated to give notice,
such as authorized by the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents.” Rule 4(f)(3) permits service “by other means not prohibited by
international agreement, as the court orders.” Defendant contends service under Rule
4(f)(3) was improper where Plaintiff did not first make a bona fide attempt at serving Ms.
Cardenas under Rule 4(f)(1) or (2).
The Court declines to adopt Defendant’s position that service under Rule 4(f)(3) is
permitted only after one or more unsuccessful attempts under Rule 4(f)(1) or (f)(2).
The first issue the Court must address is whether Rule 4(f) permits the Court
to authorize substitute service under Rule 4(f)(3) when there has been no
attempt to comply with the Hague Convention under Rule 4(f)(1). [Plaintiff]
has not sent process to Russia’s Central Authority, and [Defendant] argues
that it would be premature for this Court to permit substitute service without
[Plaintiff] having attempted service via that method. The Sixth Circuit “has
not addressed the issue of whether there is a hierarchy or preference for the
method of service under Rule 49f).” Flava Works, Inc. v. Does 1-26, 2013
WL 1751468, at *7 (N.D. Ill. Apr. 19, 2013). However, the Ninth and Federal
Circuits have rejected the argument that Rule 4(f) mandates that service be
attempted under subsections (1) and (2) before the Court can authorize
substitute service under Rule 4(f)(3), finding that “[n]o such requirement is
found in the Rule’s text, implied by its structure, or even hinted at in the
advisory committee notes.” Rio Properties, Inc. v. Rio Int’l Interlink, 284
F.3d 1007, 1015 (9th Cir. 2002). See also Nuance Comm., Inc. v. Abbyy
Software House, 626 F.3d 1222 (Fed. Cir. 2010). “By all indications, courtdirected service under rule 4(f)(3) is as favored as service available under
Rule 4(f)(1) or 4(f)(2).” Rio Properties, 284 F.3d at 1015.
Phoenix Process Equip. Co., v. Capital Equip. & Trading Corp., --- F.Supp.3d ---, 2017
WL 1424800 (W.D.Ky. April 19, 2017). The Tenth Circuit has no contrary authority, and
the text of the Rule does not support the requirement Defendant seeks to attach to Rule
4(f)(3). As such, the Court concludes now, as implicit in its prior Order, that a failed
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attempted under Rule 4(f)(1) is not necessary before a Plaintiff may resort to alternative
methods of service.
The Court also finds Defendant’s argument that service upon counsel is not
sufficient under Rule 4(f)(3) in light of Mexico’s objection to Article 10(a) of the Hague
Convention unavailing. As noted in the September 21, 2016 Order, service upon Ms.
Cardenas’ counsel did not require service in Mexico, and thus the Hague Convention does
not apply. See Calista Enterprises Ltd. v. Tenza Trading Ltd., 40 F.Supp.3d 1371, 1376
(D.Ore 2014)(“Of Tenza's proposed methods of service, substituted service upon Mr.
Zhukov's domestic attorneys is the least problematic. Such service would be complete
within the United States and would therefore not trigger the Hague Service Convention.
Furthermore, such service would give Mr. Zhukov notice sufficient to satisfy the Due
Process Clause. . . . ); Knit With v. Knitting Fever, Inc., Nos. 08–4221, 08–4775, 2010 WL
4977944, at *4 (E.D.Pa. Dec.7, 2010) (“Repeatedly, courts around the country have found
that service upon a foreign defendant through counsel is appropriate to prevent further
delays in litigation.”); RSM Production Corp. v. Fridman, No. 06 Civ. 11512(DLC), 2007
WL 2295907, at *3 (S.D.N.Y. Aug.10, 2007) (“The Hague Service Convention does not
prohibit an order pursuant to Rule 4(f)(3) permitting service through American counsel.”).
Accordingly, the Court concludes, as it did previously, that service upon Ms. Cardenas’
attorneys was proper.
To the extent Defendant’s counsel complains that Plaintiff effected service via
email, the communications between the parties indicate that counsel agreed to this method.
Defendant contends, however, that such service contravenes the Hague Convention. Again,
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however, the Convention does not apply where service was not effected in Mexico. See
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707, 108 S.Ct. 2104, 100
L.Ed.2d 722 (1988) (“Where service on a domestic agent is valid and complete under both
[governing authority] and the Due Process Clause, our inquiry ends and the Convention
has no further implications”). Furthermore, “[n]umerous courts have held that service by
email does not violate any international agreement,” even when a country objects to Article
10 of the Hague Convention, so long as “the objections of the recipient nation are limited
to those means [of service] enumerated in Article 10.” F.T.C. v. Pecon Software Ltd., No.
12-CV-7186 (PAE), 2013 WL 4016272, at *5 (S.D.N.Y. Aug. 7, 2013); see also Bazarian
Int'l Fin. Assocs., L.L.C. v. Desarrolios Aerohotelco, C A, No. CV 13-1981 (BAH), 2016
WL 471273, at *11 (D.D.C. Feb. 7, 2016) (“[A] country's objection to Article 10 does not
constitute an express rejection of service by email.”); Amirit Technologies, Inc. v. HTN
Wireless, Inc., 2017 WL 2080418, at *2 (D.N.J. May 12, 2017)( “Courts addressing the
validity of service by email, have held that this method of service ‘does not violate any
international agreement where the objections of the recipient nation are limited to those
means enumerated in Article 10.’” (quoting F.T.C. v. PCCare247 Inc., No. 12-7189, 2013
WL 841037, at *4 (S.D.N.Y. Mar. 7, 2013)).
Finally, Defendant contends that because NCC did not translate the documents into
Spanish, that she has not been given notice that comports with due process. Counsel
contends Ms. Cardenas speaks Spanish, and they do not. Despite this apparent language
barrier, this same counsel was retained by Ms. Cardenas to represent her in an effort to
recover damages for the March 31, 2012 accident. Translation was apparently not required
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in order for counsel to file the instant Motion to Dismiss the Complaint, indicating that she
received sufficient notice so as to comport with due process. See Tatung Company, Ltd. v.
Hsu, 2014 WL 11514476 (C.D.Cal. March 10, 2014). The Court finds no legal requirement
for translation of the documents, and further, it is apparent that Ms. Cardenas received
notice of the suit sufficient to comport with due process. The motion to dismiss is DENIED
as it related to Defendant’s contention that service was incomplete or insufficient.
Defendant also urges the argument previously made by her co-Defendants, that the
Court should exercise its discretion and stay or dismiss this declaratory judgment action
pending the outcome of related litigation pending before the Oklahoma Court of Civil
Appeals. Nothing in the instant motion persuades the Court that its prior determination on
this issue was in error or that either of those alternatives should be invoked. Accordingly,
and for the reasons set forth in the Court’s prior Orders, this portion of the motion is
DENIED.
For the reasons set forth herein, Defendant Cardena’s Motion to Dismiss (Doc. No.
66) is DENIED.
IT IS SO ORDERED this 22nd day of May, 2017.
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