The case of the day is Green v. Hyundai Power Transformers USA, Inc. (M.D. Ala. 2014). Adrian Green worked for Hyundai Power Transformers as a drill press operator. He was injured on the job and lost his thumb when the drill activated while he was replacing a drill bit.
Green sued Hyundai as well as the drill press’s manufacturers, Nambuk Co. and NEWCO Co., both Korean entities, in the Circuit Court of Montgomery County, Alabama. The suit was for worker’s compensation against Hyundai and for negligence and product liability against the manufacturers.
Two days after filing the complaint, Green hired a service of process firm to make service in Korea on Nambuk and NEWCO. That firm sent a request to the Korean central authority a few weeks later, and just over two months later, the central authority informed Green that it had been unable to make service on NEWCO. Approximately four months later, the process service firm inquired about Nambuk, and a few weeks later the central authority stated that it had been unable to effect service on Nambuk, either.
In February 2013, about nine months after commencement of the suit, Green, through the process service firm, took a second crack at service through the central authority. (It’s not clear from the decision precisely what went on: perhaps Green had gotten better address information on the two defendants). Within six months, the central authority had again stated that it was unable to effect service. During this six-month period, Green asked the process service firm to do an investigation into the addresses of the two defendants. Using an address uncovered in the investigation, Green’s process service firm sent a third request to the central authority. This time, the central authority was able to effect service, though by then more than a year and a half had passed since the commencement of the action. By then, Green had settled the claim against Hyundai, and Hyundai had been “dismissed from the case.”
Once it received the summons, Nambuk sought to remove the case to federal court. Green moved to remand. He focused on the statutory bar to removal after a case has been pending for a year, 28 U.S.C. § 1446(c)(1). Since enactment of the Federal Court Jurisdiction and Venue Clarification Act of 2011, the removal statute now contains an exception where “the plaintiff has acted in bad faith in order to prevent a defendant from removing the action,” and the question in the case was whether Green had acted in bad faith.
The answer was pretty obvious. Green spent thousands of dollars and made three attempts to serve process. Did he do everything perfectly? Obviously not—had he investigated Nambuk’s address at the start of the process service could have been effect more quickly. On the other hand, his first attempts at service used an address found on the drill press itself and on invoices produced by Hyundai, so Green’s efforts were at least made in good faith.
I suspect but do not know that Nambuk knew of the suit. I say that because I assume that Hyundai or its insurers were in touch with Nambuk about it, both because Hyundai had a potential claim for indemnification or contribution and because Nambuk might have information useful to the preparation of Hyundai’s defense. If this speculation is right, then it puts a bit of a gloss on the case. To be sure, a defendant’s time to remove a case does not begin to run until service of process. But a defendant who has been sued and who wants to be in federal court should consider removing the case before a year expires even if he hasn’t yet been served, it seems to me.