The case of the day is Windecker v. Hang Wei (W.D. Tex. 2020). Windecker sued Hang Wei, a Chinese national, and served him with process by leaving the documents at a home owned by him and his wife in North Carolina. Hang argued that Windecker should have served process on him via the Hague Service Convention.
The judge correctly rejected the argument, and the decision is a good reminder of some Service Convention and FRCP 4 fundamentals. The Convention is not keyed to the nationality of the defendant but the place where service is to be made. The same is true of Rule 4.
Hang had a second argument: he claimed that he did not really live at the North Carolina home. He claimed that his domicile was in China, even though he and he wife owned the US house.
In a declaration attached to the motion, Hang testifies—somewhat vaguely—that he is “domiciled” in Chengdu, China where he “own(s) a home and conducts business.” He further states that his wife “has lived in North Carolina periodically with my daughter in a house there.” Id. He makes no mention that the “ house there” is owned by Hang and his wife. Windecker contends in his declaration that Hang’s wife, daughter and mother-in-law reside in the home. He states that when Hang and his wife first visited with him (in Texas), Windecker and his wife discussed housing and school options with the Hangs, as the Hangs’ stated their intention was for Hang’s wife and daughter to relocate to the U.S. so their daughter could attend school there. And when he visited Hang in North Carolina, they met at Hang’s house, and at that time Hang’s wife, daughter and mother-in-law were living there. Id. And though the Hangs subsequently sold that house, they simultaneously purchased a different home in North Carolina. The property records in Mecklenburg County reflect that the owners of the house are Hang and his wife, and the grantee section on the warranty deed was manually altered to add Hang as a grantee, when that section originally only listed his wife, suggesting that the parties plainly wanted it to be clear on the deed that Hang was an owner of the house.
The court found that the vague assertion about his domicile was unable to overcome the evidence Windecker had offered on domicile. The court denied Hang’s motion to quash the service.