Case of the Day: Manchester v. Sivantos
Posted on February 6, 2018
The case of the day is Manchester v. Sivantos GmbH (C.D. Cal. 2018). Deborah Manchester sued Sivantos, a German company, alleging a misappropriation of her trade secrets, which related to hearing aid technology. She served process on Sivantos by serving the documents on Sivantos, Inc., an affiliate, on the theory that Sivantos, Inc. was Sivantos GmbH’s “general manager” (under California law, which is incorporated in federal law when service is being made in the United States, such service is sufficient; FRCP 4(h)(1)(B) refers instead to a “managing or general agent”). Sivantos moved to dismiss. The court held that Manchester had not met her burden to show that the service was proper, but that with discovery she might be able to. So the court granted leave to take discovery on that issue.
The judge did make one statement that should not be followed, at least without qualification. “Foreign corporations,” he wrote, “can be served through the Hague Convention so long as their country of incorporation is a signatory to the treaty.” The trouble here is that the Convention does not turn on the nationality of the person to be served. The key is rather whether the method of service the plaintiff selects requires the transmission of a judicial document to a country that is party to the Convention. The point can get a little muddy when we are talking about corporations, because in many (all?) states, corporations must have a registered address or a registered agent and can be served with process there. So in practice, it may well be true that a foreign corporation incorporated in a state that is party to the Convention can be served under the Convention. But it’s not true because that’s how the Convention works; it’s true because of a feature of corporate law that many if not all states adopt.