Case of the Day: Willis v. Magic Power Co.

The Blogatory case of the day is Willis v. Magic Power Co., a case involving service by mail under the Hague Service Convention.

Willis brought a personal injury suit against Magic Power, a Hong Kong company,  in the Philadelphia Court of Common Pleas. She served the complaint by registered mail. Magic Power objected to service by mail. The Court of Common Pleas overruled the objection, and Magic Power then removed the case to the District Court.  Willis moved to remand the case, on the grounds that Magic Power’s notice of removal was untimely (the statute requires that the notice be filed within thirty days after service of process, and under Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), only proper service starts the clock running).

As the court framed the issue, the timeliness of the removal turned on whether service by registered mail was permissible under the Convention. Article 10(a) of the Service Convention provides:

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.

The Court noted the split in authority between those courts and commentators who believe that Article 10(a), which uses the word “send” rather than the word “serve”, applies only to documents transmitted after the initial summons, and those who believe that Article 10(a) permits service of the initial summons by mail. The Court followed what it took to be the majority view, under which Article 10(a) does permit service of a summons and complaint by mail. The Court also rejected Magic Power’s claim that China had objected to Article 10(a), noting that its objection extended only to subparagraphs (b) and (c) of Article 10.

Since service by mail was proper, the thirty day removal period began to run when the service by mail was effected. The removal was therefore untimely, and the Court remanded the case.

The case is Willis v. Magic Power Co., Civ. A. No. 10-4275 (E.D. Pa. Jan. 7, 2011).

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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