Case of the Day: Kim v. Lakeside Adult Family Home

The case of the day is Kim v. Lakeside Adult Family Home (Wash. Ct. App. 2015). Ho Im Bae was an inpatient resident of the Lakeside Adult Family Home, a nursing home. She died of a morphine overdose, and her death was ruled a homicide. The personal representative of her estate, Esther Kim, sued several defendants, including a nurse, Christine Thomas. The claim against Thomas was that she was allegedly negligent for failing to report that Bae was being abused, as required under Washington’s mandated reporter law. Thomas, a Norwegian national living in Norway at the time of the lawsuit, moved to dismiss for insufficient service of process. The trial court ruled that the service was proper, but it dismissed the claim on the merits on summary judgment. Both parties appealed.

The decision is short on details of Kim’s attempt to effect service. Kim hired a process server, who personally served the documents on Thomas at her residence. It’s unclear whether the process server was a private person or a person with some particular competence under Norwegian law. It’s also unclear what methods of service Norwegian law permits, although the court noted without explanation that the service was “considered due and proper service under the laws of Norway.” Norway is a party to the Hague Service Convention, and it has objected to service under Article 10.

The court held that the service was proper, affirming the lower court’s decision, but without much discussion. The reasoning is unclear. Indeed, it’s more than unclear: it appears to me that the judges made a mistake. The court wrote:

The Hague Convention specifies that “the Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency … by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory.” Thus, service on Thomas would be effective if it was accomplished in accordance with Norwegian law.

Further, the Hague Convention “allows service to be effected without utilizing the Central Authority as long as the nation receiving service has not objected to the method used.” DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3rd Cir.1981); see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 471 cmt. e (1987) (“for states that have objected to all of the alternative methods, service through the Central Authority is in effect the exclusive means”).

Here, Kim personally served Thomas. The record contains the affidavit of Thomas’s process server, in which the process server swore that he personally served Thomas at her residence, which is considered due and proper service under the laws of Norway. Because Norway has not objected to personal service and, in fact, such service complied with its laws, there is no reason to invalidate service in this case.

This is wrong in a few ways. Yes, the Convention provides that the Central Authority effects service in accordance with its local law. But you can’t quote the provisions on service by the Central Authority to show that the plaintiff himself can effect service in accordance with the local law. That’s just a plain mistake. And yes, service through the Central Authority is not the exclusive means of service unless the state of destination has objected to all the other means. But Norway has done precisely that. (To be precise, it has objected to service under Articles 8 and 10). Again, this is a simple mistake.

It seems to me that since Norway has objected to service under Article 10, and since Kim made no attempt to serve process via the Central Authority, service is only proper, if at all, under Article 19, which provides:

To the extent that the internal law of a Contracting State permits methods of transmission, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions.

The court’s discusion, though, mentions neither Article 10 nor Article 19. It’s possible that the court’s result is right (though the court does not outline the relevant provisions of Norwegian law), but the court does not even grapple with the difficult question whether Article 19 refers to the destination state’s laws for service of process in domestic actions, or whether it refers to the destination state’s laws that deal specifically with service of process in foreign actions.

In short, this is a poorly reasoned decision that, if it is right, is right in result only.

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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