Case of the Day: Willis v. Magic Power Co.
Posted on January 13, 2011
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).