Opinion
No. HHD CV 09 6006062S
July 30, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This action arises from a motor vehicle accident. The plaintiff, Denise Williams filed a summons and complaint on November 3, 2009. The complaint alleges that the plaintiff was injured when the defendant, Jacqueline LeBrun caused her motor vehicle, which was owned by the codefendant, Quebec, Inc., to collide with the vehicle operated by the plaintiff. It further alleges that at the time of the accident, LeBrun was operating the motor vehicle within the scope of her authority as Quebec, Inc.'s agent, servant and employee.
There is no dispute that Lebrun is a resident of Quebec, Canada. Similarly, Quebec, Inc. has an address and place of business in Quebec. Accordingly, the plaintiff attempted to serve both defendants pursuant to Connecticut General Statutes § 52-62, which permits service on nonresident motor vehicle operators/owners. In the return of service attached to the complaint, state marshal Daniel Ficacelli stated that he left a copy of the writ, summons and complaint with the commissioner of motor vehicles for both of the defendants. He further states that he mailed a copy of the process to both defendants at their respective addresses in Quebec, Canada. The plaintiff asserts that she obtained these addresses from the police report that was generated following the accident. There is no dispute that the process documents were not translated into French.
Section 52-62 provides in relevant part: "(a) Any nonresident of this state who causes a motor vehicle to be used or operated upon any public highway or elsewhere in this state shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action brought against him on account of any claim for damages resulting from the alleged negligence of the nonresident or his agent or servant in the use or operation of any motor vehicle upon any public highway or elsewhere in this state may be served upon the commissioner and shall have the same validity as if served upon the nonresident personally . . . (c) Process in such a civil action against a nonresident shall be served by . . . leaving with or at the office of the commissioner . . . the process, . . . and by sending to the defendant . . . by registered or certified mail, postage prepaid a like true and attested copy, with an endorsement thereon of the service upon the commissioner, addressed to the defendant or representative at his last-known address . . ."
On January 4, 2010, the defendants filed a motion to dismiss the complaint on the ground that the Court lacks personal jurisdiction over them due to ineffective service of process. The plaintiff filed an objection to the motion on February 18, 2010. The defendants replied on March 25, 2010. The parties were heard at short calendar on April 5, 2010. With the court's permission, the plaintiff subsequently filed a supplemental memorandum of law in support of her objection on April 7, 2010.
I. SERVICE REQUIREMENTS UNDER THE HAGUE CONVENTION CT Page 15627
In order to serve a foreign defendant, a plaintiff must abide by Connecticut General Statutes § 52-59d, which provides in relevant part: "(a) Notwithstanding any provision of the general statutes relating to service of process, civil process shall not be served outside of the United States of America in violation of any applicable treaty or convention, including, without limitation, the Hague Convention on Service of Process Abroad." There is no dispute that both the United States and Canada are signatories to the Hague 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, 658 U.N.T.S. 163 (Hague Convention). Accordingly, in order to serve process on Canadian residents, the plaintiff was required to abide by the Hague Convention. Therefore, the issue here presented is whether service pursuant to § 52-62 on Canadian residents violates the Hague Convention."[The Hague Convention] was adopted at the Hague in 1965 and became effective February 10, 1969 . . . As the preamble to the treaty makes clear, it is meant to simplify service of process abroad, so as to insure that judicial and extrajudicial documents to be served abroad are brought to the notice of the addressee in sufficient time, and to make available one method of service that will avoid the difficulties and controversy attendant to the use of other methods. It is designed to facilitate the service of process and other documents in civil and commercial disputes among private litigants from different countries. The Convention does not provide independent authorization for service of process in a foreign country, but merely provides a mechanism by which a plaintiff authorized to serve process under the laws of its country can effect service that will give appropriate notice to the party being served and will not be objectionable to the country in which that party is served. Under various articles, signatory states may make designations and declarations as to their ratification of the Convention. The United States has declared that its Department of State is its central authority and that the Convention extends to all of its territories.
"The Hague Convention is mandatory where service is to be made in a signatory nation, and any attempt to serve documents there must comply therewith . . . Where service is attempted upon a defendant in a foreign country but the procedure outlined in the Hague Convention is not followed, service of process is not perfected." Annot., 7 A.L.R.Fed.2d 329 (2010).
The Hague Convention contains three articles that are relevant to this discussion. "Article 2 of the Hague Convention requires each state to designate a central authority to receive requests for service of judicial documents from the signatory countries. However, while this central authority is always to be available, its use is not compulsory, and other channels of service are provided for in Articles 8 through 11." Id. In addition to a Canadian central authority, each Canadian province/territory has its own designated central authority. See Hague Conference on Private International Law, Authorities: Canada — Central Authorities Practical Information, http://www.hcch.net/index_en.php?act=authorities. details aid=248 (accessed May 3, 2010).
Article five provides in relevant part: "The Central Authority of the State addressed shall itself serve the document or arrange to have it served by an appropriate agency . . ." Under article five, each central authority may require the served documents to be written in, or translated into, the official language of the receiving state.
Finally, article 10(a) of the Hague Convention states: "Provided the State of destination does not object, the present Convention shall not interfere with . . . the freedom to send judicial documents, by postal channels, directly to persons abroad." Moreover, Canada has submitted declarations to the Hague Convention concerning article 10(a), indicating that it "does not object to service by postal channels," and that "Canadian law allows the use of postal channels to serve Canadian documents to persons abroad." See Hague Conference on Private International Law, Authorities: Canada — Central Authorities Practical Information, Oppositions and Declarations, Art. 10(a), http://www.hcch.net/index_en.php?act=authorities.details aid=248 (accessed May 3, 2010).
II. WHETHER SERVICE OF PROCESS BY MAIL TO RESIDENTS OF QUEBEC, CANADA SATISFIES THE REQUIREMENTS OF THE HAGUE CONVENTION
The defendants argue that the procedures outlined in § 52-62 are insufficient to effectuate service in Quebec because, pursuant to article five, process must be served through Quebec's central authority. The defendants argue that by its plain language, article 10(a) of the Hague Convention was not meant to include service of process because it specifically uses the word "send" and not "service." They point out that the term "service" is specifically used elsewhere. Thus, they contend that the drafters of the Hague Convention made a conscious decision not to use that term in article 10(a). Accordingly, they assert that a logical reading of the Hague Convention reveals that the initial service of process must be served through the central authority and then, article 10(a) allows litigants to mail subsequent judicial documents if the receiving country does not object.
The plaintiff counters that service of process pursuant to § 52-62 is sufficient in this case because article 10(a) is an alternative to article five. She argues that a plaintiff may choose between article five or article 10(a) to serve process, as long as the receiving state has not objected to service of process by mail. Thus, she argues that service pursuant to § 52-62 does not violate the Hague Convention because Canada has not objected to service by mail.
There is no appellate authority in Connecticut that addresses this issue. There is a split of authority in the federal courts with respect to whether article 10(a), permits service of process by mail in international civil actions. As the parties' arguments reveal, the conflict turns on whether the use of the term "send" in article 10(a) includes "service." Some courts have concluded that it does not. For instance in Bankston v. Toyota Motor Corp., 889 F.2d 172, 172 (8th Cir. 1989), the plaintiffs attempted to serve process upon the defendants by sending a summons and complaint by registered mail, return receipt requested, to Japan. The defendants filed a motion to dismiss, arguing that the plaintiffs' method of service did not comply with the Hague Convention because article 10(a) did not include service of process. Id. The Court agreed, and found that the Hague Convention did not permit service of process upon a foreign defendant by registered mail. The Court strictly construed the treaty and reasoned that the word "send" in article 10(a) of the Hague Convention was not the equivalent of "service of process." Id. The Court pointed out that the drafters were familiar with the term "service" because it was used in other sections of the treaty. Accordingly, it concluded, "[i]f the drafters of the Convention had meant for [article 10](a) to provide an additional manner of service of judicial documents, they would have used the word `service.'" See also Nuovo Pignone SpA, v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir. 2002) ("[w]e adopt the reasoning of courts that have decided that the Hague Convention does not permit service by mail. In doing so, we rely on the canons of statutory interpretation rather than the fickle presumption that the drafters' use of the word `send' was a mere oversight").
See also Gallagher v. Mazda Motors of America, Inc., 781 F.Sup. 1079, 1082 (E.D.Pa. 1992) (article 10(a) does not permit service of process by mail); Fleming v. Yamaha Motor Corp., 774 F.Sup. 992, 996 (W.D.Va. 1991) ("[i]f the drafters of the Convention had intended article 10(a) to create an additional method of service of process, they would have used the word `service'"); Mclenon v. Nissan Motor Corp. in U.S.A., 726 F.Sup. 822, 826 (N.D.Fla. 1989) ("it strains plausibility that the Conventions' drafters would use the word `send' in Article 10(a) to mean service of process, when they so carefully used the word `service' [elsewhere]").
On the other hand, a number of courts, including the United States Court of Appeals for the Second Circuit, have concluded that article 10(a) allows service of process through mail. In Ackermann v. Levine, 788 F.2d 830, 837 (2d Cir. 1986), for example, where German plaintiffs had mailed service of process to a defendant in the United State, the defendant argued, pursuant to the Hague Convention, that the plaintiffs were required to serve process through the United States' central authority. Id., 837-38. The Court disagreed. The Court pointed out that articles two and five were not the exclusive method for serving process. Id. Furthermore, it relied on the "Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters," and 1B. Ristau, International Judicial Assistance (Civil and Commercial) § 4-10, p. 132 (1984) in support of its conclusion that the use of the word "send" in article ten was the result of careless drafting, and not a conscious decision to exclude service. Id., 839. Thus, the Court concluded that service by mail is effective if allowed by the law of the state of origin, and the state of destination has not objected to the use of article 10(a). Id., 838-39. Accordingly, because the United States had not objected to service by mail, the court found that service of process by registered mail to the defendant in Germany did not violate the Hague Convention. Id., 839-40.
The defendant failed to answer the complaint and the plaintiffs obtained a default judgment. Thereafter, the plaintiffs commenced an action seeking enforcement of the foreign judgment in the United States District Court. The trial judge declined to enforce the judgment. One of the grounds for his decision was that service of process by registered mail violated the Hague Convention. Id.
"The Handbook's publisher, the Hague Conference on Private International Law, specifically noted that the Handbook was a product of `close co-operation' between the signatory states and its organization." Weight v. Kawasaki Heavy Industries, Ltd., 597 F.Sup. 1082, 1085, n. 1 (E.D.Va. 1984).
This treatise is a commentary on the history of the negotiations leading to the Convention. Id.
See also Melia v. Les Grands Chaise de France, 135 F.R.D. 28, 35 (D.R.I. 1991) (service of process by mail is acceptable if receiving country does not object); Patty v. Toyota Motor Corp., 777 F.Sup. 956, 959 (N.D.Ga. 1991); Hammond v. Honda Motor Co., Ltd., 128 F.R.D. 638, 641 (D.S.C. 1989) (same); Zisman v. Sieger, 106 F.R.D. 194, 199 (N.D.Ill. 1985) (same); Weight v. Kawasaki Heavy Industries, Ltd., supra, 597 F.Sup. 1085-86; Chrysler Corp. v. General Motors Corp., 589 F.Sup. 1182, 1206 (D.D.C. 1984); Borschow Hospital Medical Supplies, Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472, 480 (D.P.R. 1992) (same).
Similarly, in Brockmeyer v. Marquis Publications, Ltd., 383 F.3d 798, 800 (9th Cir. 2004), the Court concluded that the Hague Convention does not prohibit service of process by international mail. "Today we join the Second Circuit in holding that the meaning of `send' in Article 10(a) includes `serve.' . . . In so doing, we also join the essentially unanimous view of other member countries of the Hague Convention." (Citation omitted.) Id. The Court looked at the history of negotiations leading to the Hague Convention and concluded that its holding was consistent with the purpose of facilitating international service of judicial documents. Id., 802-03. The Court also relied on interpretations of article 10(a) by the United States government. Specifically, the Court cited the report to Congress in 1967 from the United States delegate to the Hague Convention, which declared that article 10(a) permitted service by mail. In addition, the Court relied on U.S. State Department circulars that reached the same conclusion.
The Court also found support for its position in a 1991 State Department letter, which expressed its disagreement with the above-described holding in Bankston. Id. In that letter, the State Department disagreed that the Hague Convention did not permit service of process by mailing a copy of a summons and complaint to a defendant in a foreign country. That letter indicated that courts should follow its interpretation by emphasizing, "while courts in the United States have final authority to interpret international treaties for the purposes of their application as law of the United States, they give great weight to treaty interpretations made by the Executive Branch." Id.
As in the federal courts, there is a split within the Superior Court with respect to whether the Hague Convention permits service of process by mail upon a foreign defendant. The analysis in the Superior Court cases mirrors that of the federal cases. Compare Johnson v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. 118821 (March 17, 2000, Hurley, J.T.R.) ( 26 Conn. L. Rptr. 690, 693) ("judges of the superior court have . . . consistently aligned themselves with the . . . line of cases, which hold that `[Article] 10(a) merely provides a method for sending subsequent documents after service of process has been obtained'"), Cavendish-Pell v. Howell, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0145706 (December 16, 1995, Lewis, J.) ("[article 10(a)] merely provides a method for sending subsequent documents after service of process has been obtained") and Camphor Technologies, Inc. v. Biofer, S.p.A., 50 Conn.Sup. 227, 233, 916 A.2d 142 [ 42 Conn. L. Rptr. 591] (2007) ("Hague Convention does not permit service of process by registered mail, which is not translated into the native language of the receiving country") with Leal v. Leal, Superior Court, judicial district of New London at Norwich, Docket No. FA 09 4110533 (April 29, 2009, Boland, J.) ( 47 Conn. L. Rptr. 633, 634) (article 10(a) contains specific authorization for service of judicial documents by postal channels, directly to a person in the state of destination, provided that state of destination does not object), Venkatesan v. Venkatesan, Superior Court, judicial district of Hartford, Docket No. CV 09 502827 (June 25, 2009, Sheldon, J.) ( 48 Conn. L. Rptr. 284) ("[c]ourts in the United States have interpreted Article 10 to mean that whether or not a Contracting State chooses to permit service of process upon its residents by mail depends directly on whether that State has objected to such method of service"), and Rochester v. Guth, Superior Court, judicial district of New London at Norwich, Docket No. 123406 (October 15, 2002, Martin, J.) ( 33 Conn. L. Rptr. 259, 261) ("[b]ecause Canada does not object to service through the mail, `mail service under the Hague Convention is valid on a Canadian resident'").
Interestingly, there is one court that has held that even though article 10(a) allows service of process by mail without objection by the receiving state, the province of Quebec has not assented to service by mail because it has not legislatively enacted the Hague Convention. Thus, the court concluded that service of process through postal mail was insufficient in Quebec. Fox v. Desteoglu, Superior Court, judicial district of New London, Docket No. 559733 (December 24, 2002, Corradino, J.) ( 33 Conn. L. Rptr. 559, 560-61).
Additionally, one Superior Court case has found that whether article 10(a) permits service by mail is Irrelevant because Canada does not object to service by mail. See Bednarsky v. Rose Wreath Tree, Superior Court, judicial district of Fairfield, Docket No. CV 01 0379777 (July 27, 2001, Stevens, J.) ( 30 Conn. L. Rptr. 206, 208). The court stated "[a]ssuming arguendo that Article 10(a) itself does not allow for mail service, in this particular case, Canada has consented to and authorized mail service in addition to service through its central authority. Section IIA of the Hague Convention concerning Canada provides . . . [that] Canada does not object to service by postal channels. Consequently, regardless of whether as a general matter or as to other countries the language of Article 10(a) should be viewed as meaning `send' or `service,' as to Canada, the provision has been used to connote service of judicial documents. There does not appear to be any reason why the plain meaning of this word should be construed or applied in any manner other than its obvious import, which is that in Canada service by postal channel is not objectionable and is acceptable."
Against this background, the Court concludes, as it did in Venkatesan v. Venkatesan, supra, that service of process by mail is permissible under the Hague Convention where, as here, the country to which the process is sent has consented to such service.
III. WHETHER PROCESS SERVED BY MAIL TO RESIDENTS OF QUEBEC, CANADA MUST BE TRANSLATED INTO FRENCH TO SATISFY THE HAGUE CONVENTION
The defendants also argue that service of process was not effective because the summons and complaint were not translated into French. They argue that they speak French as their first language and have limited English language skills. Accordingly, they assert that at the time of service, they did not have the basic proficiency to understand the content of the summons and complaint. They argue that "Quebec has specific requirements for service of process on its citizens under the Hague Convention . . . which include the requirement that the documents are translated in French in recognition of the linguistic limitations . . . of many of its citizens."
Presumably, the corporate defendant argues that its corporate members are primarily French speaking.
The plaintiff does not directly address this argument. However, she does assert that a plaintiff is only required to follow the central authority's requirements if service is made pursuant to article five, not article ten, of the Hague Convention.
Here again, there is no appellate authority on this issue in Connecticut. However, there is a split of authority in other jurisdictions with respect to whether direct mail service under article 10(a) requires that the documents served by mail be translated into the language of the recipient country. The majority of the courts have held that only service pursuant to article five requires translation of the documents, while article 10(a) has no such requirement. For instance, in Heredia v. Transport S.A.S., Inc., 101 F.Sup.2d 158, 161-62 (S.D.N.Y. 2000), the district court held that the translation of a summons and complaint into French, the defendant's native language, was not required were service of process was sent by direct mail to Quebec. The Court there reasoned that the translation requirement is only triggered if the plaintiff is serving process through the central authority, under article five. Id., 162. See also Taft v. Moreau, 177 F.R.D. 201 (D.Vt. 1997) (documents served on residents of Quebec under article 10(a) do not need to be translated in French); Weight v. Kawasaki Heavy Industries, Ltd., 597 F.Sup. 1082, 1086 (E.D.Va. 1984) (Japanese translation is only required when service of process is transmitted through the central authority, and not when mailed pursuant to article 10(a)); Hammond v. Honda Motor Co., Ltd., 128 F.R.D. 638, 640-41 (D.S.C. 1989) (translation of served documents into Japanese not required where service was effected by direct mail); Lidas, Inc. v. United States, 238 F.3d 1076, 1084 n. 4 (9th Cir. 2001) (Hague Convention did not require documents to be translated into French when service was effectuated pursuant to article 10(a)); Wright v. American Home Products Corp., 768 A.2d 518, 526 (Del.Super.Ct. 2000) (plaintiff, who mailed a copy of complaint to French defendants, pursuant to the state's longarm statute, was not required to translate complaint into French in order to effectuate service under article 10(a)); Sandoval v. Honda Motor Co., Ltd. 364 Pa.Super. 136, 141, 527 A.2d 564, 567 (1987) (service under article 10(a) does not require foreign translation, even if required for service under article five); Lemme v. Wine of Japan Import, Inc., 631 F.Sup. 456, 464 (E.D.N.Y. 1986) ("the translation `requirement' is triggered only when it is the Central Authority that serves the document . . . Where the method used is direct postal service under section 10(a), the document need not be translated").
On the other hand, a few courts have held that, while service of process under Article 10(a) is valid, the documentation so served must be translated as well. For instance, in Borschow Hospital Medical Supplies, Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472, 480 (D.P.R. 1992), the Court agreed that service of process by mail on a nonresident foreign defendant was valid under article 10(a), so long as the receiving state has not objected to such practice. Nevertheless, the Court found that such service has to be in the recipient's language in order to be effective. Id. The Court stated, "The Ackerman and Meyers [v. Asics Corp., 711 F.Sup. 1001, 1007-08 (C.D. Cal. 1989)] courts . . . held that translation of the service papers is not necessary. This Court finds such holding contrary to the raison d'etre for service or process. The aim of service is to (1) apprise parties of the commencement of an action and (2) afford sufficient time to enter an informed response . . . Neither is accomplished by allowing service to be packaged in a foreign language, particularly when the recipient may be a private citizen." (Citation omitted.) Id. The Court, however, did not grant the defendant's motion to quash the service of process because the language requirement would "not be given retroactive effect as it was impossible for plaintiff to divine the law from the up to now tabula rasa of First Circuit jurisprudence." Id.
Similarly, in Lobo v. Celebrity Cruises, Inc., 667 F.Sup.2d 1324, 1339 (D.Fla. 2009), the Court found that the service by direct mail to a defendant in Italy was defective because the documents were not translated. The Court there agreed with the analysis in Borschow and concluded that if article 10(a) does permit service by mail, such service must be translated into the official language of the receiving country. Id. Accordingly, the Court granted the motion to dismiss. See also Curcuruto v. Cheshire, 864 F.Sup. 1410, 1412 n. 2 (S.D.Ga. 1994) (noting that plaintiff had met the Borschow test for propriety of service of process by mail under Article 10(a) because, inter alia, documents were translated into language of receiving country); Arrogar Distributors v. KIS Corp., 151 F.R.D. 221, 225 (D.P.R. 1993) (adopting Borschow test for propriety of service of process by mail under article 10(a), including translation requirement).
In light of the foregoing authorities, the Court concludes that the better rule is that articulated by the majority of courts that have addressed the issue. Accordingly, it concludes that the process served in this case is not insufficient under the Hague Convention because it was not translated into French.
CONCLUSION
For all of the foregoing reasons, the defendants' motion to dismiss must be DENIED. IT IS SO ORDERED this 30th day of July 2010.