Case of the Day: Norrenbrock Co. v. Ternium Mexico S.A. de C.V.
Posted on March 18, 2014
The case of the day is Norrenbrock Co. v. Ternium Mexico S.A. de C.V. (W.D. Ky. 2014). The action was for enforcement against Ternium of a judgment Norrenbock had obtained against Galvamet America Corp., a wholly-owned subsidiary of Ternium. Norrenbrock attempted to effect service on Ternium, a Mexican firm, by asking the Kentucky Secretary of State to serve the documents on Ternium’s affiliate in Texas, Ternium International. But Ternium moved to dismiss for insufficient service of process.
There was no question that the service was insufficient. The question was what to do given that more than 120 days had passed since commencement of the action. The judge concluded, wrongly, that FRCP 4(m), which sets a time limit on service of process, governed. In fact, the rule expressly notes that it does not apply to cases of service abroad. The circuits are divided about what to do if the plaintiff has not even made an attempt at service abroad within the 120-day period of FRCP 4(m), but in the absence of any discussion of these cases, the judge was overly hasty, I think, in dismissing the case on timeliness grounds.