The case of the day is Roque v. Fuji Heavy Industries, Ltd. (Conn. Super. Ct. 2013). The plaintiff, Edwin Roque, alleged that while driving, his car was struck from behind by a Subaru Impreza, which he alleges was manufactured by Fuji Heavy Industries. The claim was that the braking system was defective.
Roque sought to serve process by mailing the summons and complaint to the US headquarters of Subaru of America, in New Jersey, and by mailing the documents to the Connecticut Commissioner of Motor Vehicles and indicating to the Commissioner that Subaru of America was Fuji’s agent for service of process. Fuji moved to dismiss on the grounds of insufficient service of process, arguing that the service did not comply with the Hague Service Convention. The judge first correctly considered whether, under Connecticut law, Roque was required to transmit the documents to Japan in order to effect service. If not, then under Volkswagen the Convention would not even come into play. The judge held that the documents did have to be sent to Japan, because the statute permitting service on the Commissioner did not apply in product liability cases and because Subaru was not Fuji’s agent for service of process. But then court then went on to give extended dicta on how Roque could go about serving Fuji under the Convention. He correctly opined, in accordance with the majority of US courts and essentially all commentators, that Article 10(a) permits service of process by mail. He noted that Japan had not objected to service by mail but that a judgment obtained based on such service might not be enforceable in Japan. He thus noted that “while service by mail would be sufficient, service on the Ministry in keeping with article 5 might be the prudent course.” Good advice.