Case of the Day: Duarte v. Michelin North America

The case of the day is Duarte v. Michelin North America, Inc. (S.D. Tex. 2013). Xiomara Duarte filed a product liability case against Michelin and Toyota Motor Corp. after she was in an automobile accident involving a blow-out; she claimed the tire, manufactured by Toyota. Duarte sought to serve process on Toyota by delivering the documents to the Texas Secretary of State, who then mailed them to Fujio Cho “or any other officer of the Company” in Japan. Toyota moved to dismiss on grounds of insufficient service of process.

Under Texas law, the Secretary of State was Toyota’s agent for service of process. So Duarte’s view was that service was complete once she delivered the documents to the Secretary of State, and that under Volkswagen the Convention did not even come into play. But under Texas law, the court does not acquire jurisdiction over the defendant until the Secretary of State forwards the documents to the defendant, even though service is effected by delivering the documents to the Secretary. Texas law on this seems a little bit convoluted. But in any event, the judge rejected the argument that the Convention did not apply because the documents did not have to be transmitted abroad.

The remaining question was whether the service by mail satisfied the Convention. Unfortunately, the Fifth Circuit is one of the minority of American jurisdictions that holds that Article 10(a) of the Convention does not permit service by mail because it speaks of “sending” rather than “serving” documents. The judge reviewed the issue in great detail, and reading between the lines, I think the judge thought the Fifth Circuit had gotten it wrong. But bound by circuit precedent, he held that service by mail did not satisfy the Convention. Duarte will, however, have an opportunity to attempt service again under the Convention.

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