Gary Dean and Denise Broad (plaintiffs) filed a diversity personal injury case in a Washington federal court. Mr. Broad received his injury while demonstrating the Kingdome Mannesmann Facade Maintenance System made by Mannesmann Anlagenbau, A.G. of Germany.
Both Germany and the United States are parties to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 [1969] (the Hague Convention). The Hague Convention applies “where there is occasion to transmit a judicial or extrajudicial document for service abroad.” It requires that every party designate a Central Authority to receive and help to perfect local service of process issuing out of litigation taking place in another party.
While the Convention allows for several alternative service methods, Germany has objected to them and demands that foreign plaintiffs work through the appropriate German Central Authority. That Authority has to see to it that the complaint and summons get served “by a method prescribed by [Germany’s] internal law for the service of documents in domestic actions upon persons who are within its territory.” Art. 5(a). The Convention itself does not set time limits for service. Washington law, however, provides that service after the complaint is filed tolls any applicable limitations period for 90 days. Failure to effect service within that extended period makes the case untimely.
Mr. Broad’s injury took place on May 1994 and plaintiffs filed their complaint on May 16, 1997, the end of the limitations period. After having to remedy the fact that they had not translated the legal documents into German, plaintiffs authorized a German firm to translate the documents and to forward them to the proper Central Authority in Germany. The German firm notified plaintiffs on September 24, 1997 that the Central Authority had sent their papers to a local court for service upon defendant. The latter took place on September 18, 1997, 125 days after the filing of plaintiffs’ complaint.
For failing to accomplish service within 90 days, the district court gave defendant a summary judgment of dismissal for lack of timeliness. On appeal, the Ninth Circuit decided that the lower court had failed to take into account that the Convention required plaintiffs to surrender control over service to a Central Authority for an indefinite time period. The Circuit court then certified two questions to the Washington Supreme Court to obtain clarification of the operation of Washington law in a Convention context.
These questions were 1. “[W]hether state law deems a designated foreign central authority a ‘substitute’ or ‘agent’ for purposes of meeting Washington’s 90-day time period for service of process,” or; 2. “[A]lternatively, whether state law recognizes an exception to [or an extension of] the 90-day time limit for service of process where plaintiffs must, under the Hague Convention, relinquish control over serving a defendant to a foreign central authority for an indefinite period of time.” See Broad v. Mannesmann Anlagenbau, A.G., 196 F.3d 1075, 1076 (9th Cir.1999). The Washington Supreme Court answers first that the Central Authority is not an “agent” of the defendant for service purposes, and second that sending the complaint and summons to the Central Authority within 90 days of the filing of the state complaint should extend the 90-day period.
Sitting en banc, the Washington Court first points out that the Hague Convention preempts inconsistent state law where it applies. In a case like this, for example, it requires a plaintiff to send the suit papers to the designated Central Authority to be served on a German defendant. By its terms, the Central Authority cannot play the role of defendant’s agent, contrary to plaintiffs’ contention.
In addition, the Convention is not a “long-arm” provision independently authorizing service outside the U.S. On the contrary, in the Court’s view, it merely sets up various methods of serving process abroad, if and when a state or federal statute permits transnational service. Nor does the Convention purport to set up criteria for personal jurisdiction over a foreign defendant.
Plaintiffs analogized the situation here to cases where the law makes service upon a defendant’s agent complete, e.g., for limitations purposes. The Court is unconvinced. “The Hague Convention clearly contemplates, and explicitly states, that the central authority itself serves the defendant, not that the central authority itself may be served. … [It] does not provide that the central authority merely forward notice to the defendant, but instead provides that the central authority actually serve the defendant or arrange to have the defendant actually served.” [678-79]
Plaintiffs, however, fare better on their “tolling” argument. “Once the necessary documents are transmitted to the central authority, the timing of service is out of a plaintiff’s control. Service thus may be effected after a state statute of limitations runs. In Marschauser v. Travelers Indem. Co., 145 F.R.D. 605 (S.D.Fla.1992), for example, Israel’s central authority had not sent the required certificate indicating whether service had been made on one of the defendants nearly nine months after receiving the request for service abroad. Also, the French central authority took over six weeks to serve the defendants, as noted in the unpublished opinion of Greene v. Le Dorze, 1998 WL 158632 (N.D.Tex.1998). The Hague Convention stands as a positive rule of law which could prevent timely commencement of suit.” [683] In such situations, Washington precedent recognizes a need to extend the 90-day period.
The Court cautions that transnational service of a complaint and summons other than pursuant to the Convention or to its declarations and reservations would not have a “tolling” effect. Since plaintiffs’ English versions did not comply with German specifications, plaintiffs had to, and did, get the translated documents to the Central Authority within the full 90-day period.
Citation: (Certification in) Broad v. Mannesmann Anlagenbau, A.G., 141 Wash.2d 670, 10 P.3d 371 (2000).
Michael L. Avery, Sr.
He became a lawyer after a distinguished career in the U.S. Marine Corps. Former Captain Michael L. Avery, Sr. was born in Long Beach, California on January 5, 1959, but grew up in Natick Massachusetts. After graduating from Ohio Wesleyan University with a B.A. degree in History and Politics and Government, Michael Avery attended Officer Candidate School and was commissioned a Second Lieutenant on December 18, 1981. Upon completion of The Basic School, he was selected for assignment as an infantry officer and attended Infantry Officers Course in Quantico, Virginia. After graduation from IOC he was assigned to 2nd Battalion, 7th Marines at Camp Pendleton as a Rifle Platoon Commander in Golf Company. While assigned to Golf 2/7, Second Lieutenant Avery participated in Operation Colonel Potlatch in the Aleutian Islands as a Rifle Platoon Commander and Team Spirit as a Weapons Platoon Commander. During the battalion’s overseas deployment to Okinawa in 1983, then First Lieutenant Avery attended and successfully completed Naval Gunfire School in the Philippines. Following the 2/7’s overseas deployment, 1st Lt. Avery was assigned as the 81mm Platoon Commander for 2/7.
First Lieutenant Avery was augmented as a regular officer in August of 1983 and selected for assignment to recruiting duty at 12th Marine Corps District on Treasure Island, San Francisco, California. His initial duties were as a Contact Team Officer and serving as a “floating” Operations Officer for various Recruiting Stations including RS Portland and RS Seattle. Then First Lieutenant Avery was reassigned as the Executive Officer of Recruiting Station San Francisco where he completed his assignment on recruiting duty in August of 1987. Promoted to Captain, he was assigned to 3rd Landing Support Battalion in Okinawa Japan as the S-3A. At 3rd LSB he was detailed as augment S-4 for 35th MAU only five weeks prior to deployment for Exercise Balikatan. Working outside his MOS, he successfully completed the planning and coordination of combined ship and air embarkation and Combat Service Support plans for a MAU sized operation. Upon his return to 3rd LSB, he was reassigned to 9th Marines for Team Spirt as part of the regimental staff. Following Team Spirt, then Captain Avery served as the S-3 for 3rd LSB prior to his selection to attend Amphibious Warfare School. Upon his successful graduation from AWS, Captain Avery resigned his commission to attend law school at the American University Washington College of Law.
Michael L. Avery, Sr., Esq. is proud to have served as an Infantry Officer and a Captain in the United States Marine Corps. He lives by the motto: Semper Fidelis, or Semper Fi, which means “always faithful”. He believes deeply in the justice clients deserve and works hard to achieve it case after case.
Contact
Michael L. Avery, Sr., Esquire
The Avery Law Firm
10382 Democracy Lane | Fairfax, Virginia 22030
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Practice Areas
* Auto Crashes
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* Commercial Vehicle Accidents
* Uninsured / Underinsured Motorist
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Experience
Since 1998, Michael Avery has been the principal attorney of The Avery Law Firm in Virginia. Previously, from 1981 to 1992, Mr. Avery served in the U.S. Marine Corps, and achieved the rank of Captain.
Education
Mr. Avery received his Juris Doctor (J.D.) from the American University, Washington College of Law, in Washington, DC in 1994. Prior to his law studies, he graduated from Ohio Wesleyan University with a B.A. in History & Politics in 1981.
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Michael Avery, Esq 