Case of the Day: Foster v. Bridgestone Americas, Inc.

The case of the day, Foster v. Bridgestone Americas, Inc. (S.D. Ala. 2011), is a service of process dispute involving a Japanese defendant. Foster sued Mazda Motor Corp. and others for wrongful death after her husband was killed in an auto accident. Her claim was that the accident was caused “by catastrophic failure and tread separation of a tire”. Mazda is a Japanese corporation with headquarters in Hiroshima. Foster attempted to serve process on Mazda by service on its US subsidiary, Mazda Motors of America, Inc. The question was whether this service was sufficient.

The judge cited the Volkswagen case for the proposition that the Hague Service Convention applies if and only if transmission of a document abroad is required by the law of the forum. So far so good. But it seems that he took “the forum” to mean Alabama rather than the United States and referenced Ala. R. Civ. P. 4 rather than Fed. R. Civ. P. 4 as the applicable law, which I think is a mistake.

Volkswagen says:

The obvious question, then[,] is whether the Hague Convention applies here. The Supreme Court has explained that “[i]f the internal law of the forum state defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies.” … Thus the Court looks to Alabama law to determine whether it required Foster to transmit documents abroad in order to serve process on Mazda Japan.

The reference to “forum state” can be confusing in the American context, because the fifty states, whatever their status in US law, are political subdivisions of the United States for purposes of international law, and because in international law the word “state” refers to countries (China is a state, the United States is a state, etc.). It is clear that the reference to “the internal law of the forum state” in Volkswagen is not a direction to refer to the law of the particular state where the federal court hearing the action is sitting. Of course, if the case is being heard in a state court rather than a federal court, the applicable law will be the law of that state, but here the case was pending in federal court.

In some circumstances, federal law incorporates state law regarding service of process. Thus, for instance, under Rule 4(e)(1), it is proper to serve an individual within a judicial district of the United Sates by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Rule 4(h)(1)(A) provides a similar rule for serving a corporation, a partnership, or another unincorporated association. But Rule 4(f), which governs service abroad, does not incorporate state law. Thus I think the judge’s citations to Ala. R. Civ. P. 4 were ill advised.

All this being said, service would be proper under either Fed. R. Civ. P. 4 or Ala. R. Civ. P. 4 if the US subsidiary was Mazda’s agent. But what law governs that question? My view is that federal law, not state law governs (see the discussion in the post on  In re Application of High Point, the case of the day from June 23, 2011). Nevertheless, there isn’t a lot of federal common law of agency out there, and it’s not clear that federal law really would differ dramatically from state law in general, or Alabama law in particular, on these questions, so the judge was probably right to decide the agency question with reference to Alabama cases. On ordinary agency principles, the court found that the parent did not exercise so much control over the subsidiary as to make the subsidiary the agent of the parent for service of process purposes, and accordingly, it quashed the service of process, giving Foster leave to attempt service under the Hague Convention.

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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