Case of the Day: Callaway v. Kittler

The case of the day is Callaway v. Kittler (M.D. Fla. 2013). Carol Callaway alleged that Martin Kittler, who resided in the Czech Republic, had injured her in an automobile accident in Florida. She sued in the Osceloa County Circuit Court in Florida. She sought to serve process on Kittler by service on the Florida Secretary of State. The relevant Florida statute provides:

Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle or of having it operated, or of permitting any motor vehicle owned, or leased, or controlled by him or her to be operated with his or her knowledge, permission, acquiescence, or consent, within the state, or any resident of this state, being the licensed operator or owner of or the lessee, or otherwise entitled to control any motor vehicle under the laws of this state, who becomes a nonresident or conceals his or her whereabouts, by the acceptance or licensure and by the operation of the motor vehicle, either in person, or by or through his or her servants, agents, or employees, or by persons with his or her knowledge, acquiescence, and consent within the state constitutes the Secretary of State his or her agent for the service of process in any civil action begun in the courts of the state against such operator or owner, lessee, or other person entitled to control of the motor vehicle, arising out of or by reason of any accident or collision occurring within the state in which the motor vehicle is involved.

Kittler removed the case to the district court and then moved to quash the service of process and to dismiss. Callaway apparently conceded that she had not validly effected service on Kittler, and thus the magistrate judge recommended that the service be quashed but recommended denial of the motion to dismiss to allow Callaway to serve the summons via the Hague Service Convention.

It strikes me that Callaway’s concession may have been too hasty. Another Florida statute apparently requires the Secretary to send the summons and complaint on to the defendant after receiving them by certified mail. Now, the Czech Republic has objected to service by postal channels under Article 10(a), but it could be that the Florida statute would permit the Secretary of State, in such circumstances, to transmit the documents to the defendant via the central authority mechanism rather than directly via mail. It’s not clear precisely what the Secretary did. But service by the Secretary via the central authority mechanism would, I think, be valid. So it would be good to know whether the Secretary did in fact transmit the documents under Article 5. If so, then I think Callaway’s service would be valid. If not, though, then the case seems correctly decided.

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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