Opinion
20672/07.
Decided March 28, 2008.
Herzfeld Rubin, P.C., Attorneys for Defendants, New York, New York.
Wilson, Bave, Conboy, Cozza Couzens, P.C., Attorneys for Plaintiffs, White Plains, New York.
Defendant Fuji Heavy Industries, Ltd. ("Fuji") moves for an order, pursuant to CPLR 3211, dismissing plaintiffs' complaint against movant for lack of personal jurisdiction due to improper service of process.
Upon the foregoing papers it is hereby ORDERED that the motion is denied.
The instant products liability action alleges that various defects in a 2004 Subaru Impreza WRX killed Jeffrey R. Keesler, the son of plaintiffs Patrice and Tom Keesler, on October 2, 2005 at approximately 9:00 P.M. on Montrose Station Road in Westchester, Georgia where said motor vehicle left the roadway and struck a tree. It is alleged that the airbag/SRS system and other safety components failed to provide proper restraint and crash worthiness. Defendant Subaru of America, Inc. ("Subaru") imported the car, which defendant Fuji designed and manufactured.
It is uncontroverted that defendant Fuji was served on October 24, 2007 via registered mail. The issue is whether such service on a Japanese company is legally proper under Article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("Hague Service Convention" or "Convention"), an international treaty between thirty-two (32) nations enacted in 1965 to create a simplified and expedited procedure for service of papers from one signatory to another. See Preamble to the Hague Service Convention; see also Zisman v Sieger, 106 FRD 194 (ND Ill 1965).
Article 10 of the Hague Service Convention provides:
"Provided the State of destination does not object, the present Convention shall not interfere with
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,
(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination."
Since the Hague Service Convention is a United States Treaty, it preempts contrary state and federal laws under the Supremacy Clause of the United States Constitution. See Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694 (1988).
To that end, the Second Circuit has upheld Article 10(a) service by registered mail. See Ackermann v Levine, 788 F2d 830 (2d Cir 1986). The court held that, given the Convention's history and sole purpose, the word send' meant service.' Id at 839. The court also relied on the fact that Bruno Ristau, a leading commentator on the Hague Service Convention, had reached the inescapable' conclusion that Article 10(a) meant service. Id.
More recently, the Second Department held that the Convention "permits service of process by mail directly to the person abroad provided that the State of designation does not object in its ratification of such service." Fernandez v Univan Leasing , 15 AD3d 343, 344 (2nd Dept 2005) citing Ackermann v Levine, 788 F2d 830 (2d Cir 1986); see also Cantara v Peeler, 267 AD2d 997 (4th Dept 1999) and Rissew v Yamaha Motor Co, 129 AD2d 94 (4th Dept 1987). It is uncontroverted that Japan does not object to Article 10(a).
Defendant Fuji contends that Article 10(a) permits only the sending' of post-service judicial documents and not service of process.' In a formal opinion, however, the State Department expressly rejected this interpretation, calling it "incorrect to the extent that it suggests that the Hague Service Convention does not permit as a method of service of process the sending of a copy of a summons and complaint by registered mail to a defendant in a foreign country." United States Department of State Opinion Regarding the Bankston Case and Service by Mail to Japan Under the Hague Service Convention, 30 I.L.M. 260, 261 (1991). Courts are required to "give great weight to treaty interpretations made by the Executive Branch. Rest. 3rd, Restatement of Foreign Relations Law of the United States, Section 326(2) (1986)." Id.
Finally, treaties shall be liberally construed. "[W]hen a treaty provision fairly admits of two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred." Nielsen v Johnson, 279 US 47, 51-52 (1929); see also Air France v Saks, 470 US 392 (1985) and Maximov v United States, 299 F2d 565 (2d Cir 1962).
Accordingly, plaintiffs properly served defendant Fuji via the Hague Service Convention. See Lemme v Wire of Japan Import, Inc, 631 F Supp 456 (EDNY 1986) (service by mail to Japanese defendant under Article 10[a] is valid service); see also Tamari v Bache, 565 F2d 1194 (7th Cir 1977) (same).
This matter is scheduled for a preliminary conference on April 15, 2008 at 9:30 A.M. in courtroom 1203 at the Westchester County Courthouse, 111 Dr. Martin Luther King, Jr. Boulevard, White Plains, New York.