The case of the day is Moore v. Lowe’s Companies (W.D. Ky. 2013). David Alexander Moore claimed that he was injured when he used a table saw that was manufactured by Rexon Industrial Corp. Rexon was a Taiwanese firm. Moore first tried to serve Rexon by service on the Kentucky Secretary of State. The Secretary of State forwarded the summmons and complaint to Rexon by sending it via certified mail to Power Tool Specialists, Inc., a Massachusetts corporation with its office in South Carolina. According to Moore, PTS was Rexon’s subsidiary. Rexon moved to dismiss for insufficient service of process.
The judge denied the motion. The facts were somewhat noteworthy because it was particularly clear that PTS and Rexon were sufficiently intertwined to make the outcome of the case pretty clear. For one thing, two other courts, in two different cases, had found PTS was an agent of Rexon for service of process. For another thing, Rexon itself, in testimony, had admitted that it did business in the US as PTS.
The judge treated the question as one of federal law, only turning to Kentucky law at the end of the opinion, to amplify his decision. I have previously opined that federal law does indeed govern, though as I have noted, there is not an enormous amount of federal common law on the question of agency.
The Case of the Day is Stone v. Ranbaxy Pharmaceuticals, Inc. (S.D.N.Y. 2011). Paula Palladino was prescribed generic ciprofloxacin for treatment of an infection. Shortly thereafter, she went to the hospital with a fever and a rash. She was eventually diagnosed with Stevens Johnson Syndrome, a rare skin condition, and ultimately died. Her heirs sued Ranbaxy Laboratories, Ltd., an Indian corporation that manufactured the drug, and its subsidiary and exclusive US distributor, Ranbaxy Pharmaceuticals, Inc., on product liability, negligence, misrepresentation, and wrongful death claims. Ranbaxy Laboratories, the Indian parent company, moved to dismiss for lack of personal jurisdiction and insufficient service of process.
The plaintiffs attempted to serve Ranbaxy Labs by delivering the summons and complaint to Ranbaxy Pharmaceuticals’ offices in Princeton, New Jersey. But the Ranbaxy employee who accepted the documents, while acknowledging his authority to accept service on behalf of Ranbaxy Pharmaceuticals, did not acknowledge his authority to accept service on behalf of Ranbaxy Laboratories.
The court rejected the notion that service on the subsidiary constituted service on the parent. Under New York law, the test has four factors: (1) do the parent and subsidiary have common ownership; (2) is the subsidiary financially dependent on the parent; (3) to what degree does the parent interfere with the selection of the subsidiary’s executives or fail to observe corporate formalities; and (4) the extent of control. Volkswagenwerk AG v. Beech Aircraft Corp., 751 F.2d 117 (2d Cir. 1984). The plaintiffs had satisfied the first factor but had offered no evidence on the other factors.
But the court also noted that dismissal was not mandatory, and in the circumstances it gave the plaintiffs sixty days to make service.