Case of the Day: Moore v. Toyota
Posted on November 29, 2017
The case of the day is Moore v. Toyota Motor Corp. (E.D. La. 2017). It’s a simple case, but judge Sarah Vance gets everything right. The plaintiff, Robert Moore, alleged that his Toyota Corolla had a defective airbag, and that he was injured by the airbag when he was involved in an accident in 2016. He first sued in the Louisiana state court, naming several defendants. The defendants who had been served with process removed the case to the District Court. At that time, Toyota Motor Corp. had not yet been served. After the removal, Moore’s counsel sought to serve process on Toyota in Japan by mail. Toyota moved to dismiss for insufficient service of process.
The Hague Service Convention permits service by mail, and Japan has not objected to postal service. However, as the judge recognized, and as the Supreme Court recently held in Water Splash, the Convention merely permits, but does not authorize service by mail. Moore pointed to Louisiana state law, but because the case had been removed, and because the defendant was abroad, state law methods of service were not available to Moore under FRCP 4(f). Service by mail is authorized by FRCP 4(f)(2)(C)(ii), but only if the clerk addresses and sends the mail, and only if the mail requires a return receipt, which didn’t happen here. So the judge correctly granted the motion (though she provided Moore with another chance to serve process).
Let me just introduce one little wrinkle, which arises because the case was removed from ste state court. Under 28 U.S.C. § 1448:
In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.
How does this statute apply here? Here is a brief excerpt from my chapter in the ABA treatise:
In Beecher v. Wallace, the Ninth Circuit held that a state court’s summons becomes a nullity upon removal, and if the defendant has not been served at all at the time of removal, the plaintiff must obtain and serve a new federal summons. If, on the other hand, the defendant has been served but the service has not been perfected or was defective in some way, then the service may be perfected or completed as in the state court. Other courts that have considered the question have allowed plaintiffs to serve an already-issued state court summons after removal. The interpretative question seems to be whether the statutory phrase “in the same manner as in cases originally filed in such district court” should be read to modify both the statutory provision for completion of service and the statutory provision for issuance of new process, or whether it should be read to modify only the latter provision. The better view seems to be that the phrase “in the same manner as in cases originally filed in such district court” modifies only the statutory provision for issuance of new process, since otherwise one has to say that the statute provides that the plaintiff may “complete” service of process already commenced in the state court only by starting over in the federal court.
When I wrote about service that had “not been perfected or was defective in some way,” I had in mind service that was at least begun in the state court, which wasn’t the case here. So it seems the case was decided consistently with my construction of the statute.