Asarco v. Noranda Mining

Filing 38

MEMORANDUM DECISION & RULING denying 33 Motion to Quash. Signed by Magistrate Judge Dustin B. Pead on 2/26/13 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ASARCO LLC, a Delaware limited
liability company,
MEMORANDUM DECISION &
RULING

Plaintiff,
vs.

Case No. 2:12-cv-527

XSTRATA PLC, a United Kingdom
Corporation,

Judge Tena Campbell
Magistrate Judge Dustin Pead

Defendant.

This matter was referred to Magistrate Judge Dustin Pead by Judge Tena Campbell
pursuant to 28 U.S.C. § 636(b)(1)(A) (Document Number 34).1 Before the Court is Xstrata
PLC’s (“Defendant”) Motion to Quash for ineffective service of process (Document Number 33).
The Court has carefully reviewed the motion and memoranda submitted by the parties. The
Court elects to determine the motion on the basis of the written memoranda and finds that oral
argument would not be helpful or necessary. See DUCivR 7-1(f).
ARGUMENT
Defendant moves to quash Plaintiff’s service of process on the grounds that it was
ineffective due to the use of an improper method not contemplated under the Federal Rules of

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This case was first assigned to District Court Judge Dale A. Kimball. After Judge
Kimball’s recusal, this case was reassigned to Judge Tena Campbell (Document Number 32),
who then referred this case to Magistrate Judge Dustin Pead.

Civil Procedure or the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents (“the Hague Convention”) (Document Number 33 at 2). Specifically, Defendant
claims that Plaintiff mailed or dropped the Complaint and Summons in Defendant’s company
letterbox, and that neither the federal rules nor the Hague Convention approve of this method of
service. Id. Defendant equates the dropping of service documents in a letterbox with service of
an international defendant directly by mail, and notes that there is a circuit split on whether
service of process by mail is permitted under Article 10(a) of the Hague Convention. Id. at 3.
Defendant contends that, consistent with the Fifth and Eighth Circuits, this Court should find that
service by mail is not permitted under the Hague Convention. Id.
Additionally, Defendant asserts that even if this Court finds service by mail to be proper,
service in this case should still be deemed improper because Plaintiff failed to serve the
Complaint and Summons by certified international mail. Id. at 4-5. Defendant contends that
both the federal rules and case law require international mail to be certified if served upon U.S.
companies and individual defendants, and that the same standard should apply to U.S. plaintiffs
serving international defendants. Id. at 6.
In response, Plaintiff asserts that its service of Defendant was properly certified through
the Central Authority of the United Kingdom, as stipulated by Article 5 of the Hague
Convention. (Document Number 36 at 1). Accordingly to Plaintiff, service of process through a
foreign state’s central authority is the primary method contemplated under the Hague
Convention. Id. at 1-2. Here, service was properly submitted to the United Kingdom’s Central
Authority, who then posted the service documents in Defendant’s company letterbox. Id. at 2. In
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addition, the Central Authority’s Foreign Process Section stamped and authenticated that service
of Defendant was proper and consistent with United Kingdom laws. (Document Number 24 at 3;
Document Number 36 at 2, 4-5).
Plaintiff argues that Defendants’ interpretation of Article 10(a) of the Hague Convention
is immaterial because service of Defendant was properly given under Article 5 of the Hague
Convention. (Document Number 36 at 3-5). Moreover, the Central Authority’s attestation of
proper service on Defendant establishes prima facie evidence of proper service, and Defendant
fails to show lack of actual notice or prejudice to rebut this evidence. Id. at 5.
DISCUSSION
This Court finds that Plaintiff served Defendant through the primary method
contemplated under the federal rules and the Hague Convention. Accordingly, Plaintiff’s service
of Defendant is proper.
Federal Rule of Civil Procedure 4(h)(2) states that service on a foreign corporation may
be given “in any manner prescribed by Rule 4(f) for serving an individual.” Fed. R. Civ. P.
4(h)(2). Furthermore, Federal Rule (f)(1) allows service “by any internationally agreed means of
service . . . such as those authorized by the Hague Convention on the Service Abroad of Judicial
and Extrajudicial Documents.” Fed. R. Civ. P. 4(f)(1).
In turn, the Supreme Court explained that the Hague Convention’s revision of past
international civil procedure agreements was intended to “provide a simpler way to serve process
abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely
notice of suit, and to facilitate proof of service abroad.” Volkswagenwerk Aktiengesellschaft v.
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Schlunk, 486 U.S. 694, 698 (1988). The Supreme Court further clarified that, “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.” Id.; Convention on Service
Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15,
1965 (Hague Service Convention), [1969] 20 U.S.T. 362, T.I.A.S. 6638, Art. 2. Once a central
authority receives a foreign service request, “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.” Volkswagenwerk, 486 U.S. at 699; 20 U.S.T. 362, Art. 5. After
service is effected, the central authority provides “a certificate of service that conforms to a
specified model.” Volkswagenwerk, 486 U.S. at 699; U.S.T. 362, Art. 6.
In this case, Plaintiff served Defendant through the Central Authority of the United
Kingdom, as evidenced by the Central Authority’s certificate attesting that Defendant was
properly served under the internal laws of the United Kingdom (Document Number 24). After
receiving Plaintiff’s request, the Central Authority posted the documents through Defendant’s
company letter box, and certified that service occurred by a method approved under the internal
laws of the United Kingdom. Id. This method of service was in harmony with the requirements
of Articles 5 and 6 of the Hague Convention. Furthermore, Defendant fails to meet its burden of
showing how this method failed to provide actual notice or caused prejudice to the Defendant.
Defendant’s implication that Plaintiff personally sent the Complaint and Summons to
Defendant’s company letterbox, a process the Defendant compares to sending service by mail, is
inaccurate. The method of service in this case can be distinguished from the cases that
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Defendant cites in support of this position. In each of Defendant’s cases the plaintiff, or a party
other than a central authority, directly mailed service to an international defendant without
placing a request with the relevant central authority. See Nuovo v. Storman Asia M/V, 301 F.3d
374, 377-78 (5th Cir. 2002) (plaintiff effected service of process by sending documents by Federal
Express mail to defendant’s president); Wilson v. Honda Motor Co., 776 F.Supp. 339, 340 (E.D.
Tenn. 1991) (Tennessee Secretary of State sent documents directly to defendant by registered
mail); Raffa v. Nissan Motor Co., 141 F.R.D. 45, 45 (E.D. Pa. 1991) (plaintiff directly sent
defendant summons and complaint by registered mail). As explained above, Plaintiff sent a
request to the Central Authority who then posted the Summons and Complaint in Defendant’s
company letterbox. Because Defendant was not served by mail, the Court finds that Article 10(a)
of the Hague Convention is not applicable.
CONCLUSION
Based upon the foregoing, IT IS HEREBY ORDERED that Defendant’s Motion to Quash
is DENIED.
DATED this 26th day of February, 2013.
BY THE COURT:

_________________________
DUSTIN PEAD
United States Magistrate Judge

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