deceased, brings this action against defendants Suzuki Motor
Co. Ltd. ("Suzuki"), American Suzuki Motor Corporation
("American Suzuki"), Whittle's Old Mystic Marina, Inc.
("Whittle's"), and Whittle's Marina, Inc. ("Whittle's Marina").
Plaintiff asserts causes of action based on wrongful death and
products liability. Jurisdiction is premised on diversity of
citizenship pursuant to 28 U.S.C. § 1332. Currently before the
Court is defendant American Suzuki's motion, joined in by
defendant Suzuki, to dismiss plaintiff's complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. After a
brief discussion of the background facts, the Court will turn
to discuss the motion at bar.
According to the complaint, defendants Suzuki and American
Suzuki manufactured and distributed an outboard engine which
was sold to defendant Whittle's and Whittle's Marina, the
owners of Old Mystic Marina in Connecticut. According to
plaintiff, defendant Whittle's sold a pleasure boat, including
the aforementioned outboard engine, to Willie B. Hines, who
shared equal ownership of the boat and its accessories with
plaintiff. Plaintiff alleges that on May 31, 1989, employees of
defendant Whittle's worked on the boat's engine, pursuant to
plaintiff's complaints that the motor constantly stalled. The
next day plaintiff William Greenfield and plaintiff's intestate
Marcia Greenfield were anchored off Race Island, in the Long
Island Sound, where Marcia Greenfield drowned.
Allegedly, the engine of plaintiff's boat did not have the
necessary fuel line connecting the fuel tank and the engine,
and as a result of this defect, the engine frequently stalled
and was difficult to restart. Furthermore, plaintiff alleges
that defendant Whittle's allowed the engine to be and remain in
a state of ill repair prior to and after the sale of the engine
According to plaintiff's complaint, the events which led to
the drowning are as follows. On June 1, 1989, plaintiff William
Greenfield and plaintiff intestate Marcia Greenfield were in
the boat when the engine stalled off Race Island. Plaintiff
alleges that while he was attempting to restart the stalled
engine, the anchor line became entangled in the engine's lower
underwater unit. Next plaintiff attempted to cut the anchor
line, but was pulled into the water. Thereafter, while
plaintiff intestate was attempting to rescue plaintiff, an
onrush of water washed her inside the boat below deck. The boat
then capsized, trapping the decedent underwater.
Plaintiff commenced this action on or about March 21, 1991.
Plaintiff then sent two copies of the summons and complaint,
unaccompanied by a Japanese translation, to defendant Suzuki,
a Japanese Corporation, through the Central Authority in Japan
pursuant to the Hague Service Convention, a treaty to which
both the United States and Japan are parties. Plaintiff's
request, which accompanied the documents, specified that "any
method of service is acceptable under the Hague Convention
Rules." Both the summons and complaint were delivered to a
clerk of defendant Suzuki.
Defendants Suzuki and American Suzuki move for dismissal of
the complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Defendants argue that the basis for dismissal
of both the negligence and breach of warranty causes of action
is the lack of proximate cause. Furthermore, defendants urge
that the products liability cause of action should be dismissed
because any alleged defect in the engine was not a substantial
factor in causing the death of decedent. Finally, defendant
Suzuki argues that the complaint should be dismissed for lack
of personal jurisdiction based on improper service, in that it
was allegedly not in accordance with the rules of the Hague
Convention. For the reasons discussed below, defendants' motion
In reviewing a motion to dismiss for failure to state a claim
upon which relief can be granted, pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the allegations of the
complaint must be accepted
as true. Fed.R.Civ.P. 12(b)(6); Cruz v. Beto, 405 U.S. 319,
322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). Furthermore,
the complaint must be considered in the light most favorable to
the plaintiff. Therefore, because the Rule 12(b)(6) motion is
directed only to the face of the pleadings, Goldman v. Belden,
754 F.2d 1059, 1065 (2d Cir. 1985), the task of a federal court
in reviewing the sufficiency of a complaint is a limited one.
The issue is not whether the plaintiff will ultimately prevail,
but whether the party is "entitled to offer evidence to support
the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.
1683, 1686, 40 L.Ed.2d 90 (1974).
Rule 12(b)(6) must be read in conjunction with Rule 8(a) of
the Federal Rules of Civil Procedure, which sets forth the
requirements for pleading a claim in federal court and directs
that a pleading contain "a short and plain statement of the
claim showing that the pleader is entitled to relief. . . ."
Fed.R.Civ.P. 8(a). Accordingly, in a negligence cause of
action, a detailed statement of the circumstances is not
necessary, and a general allegation of negligence will be
sufficient. See generally 5 Wright & Miller, Federal Practice
and Procedure § 1249 at 315 (1990).
In the case at bar, defendants contend that the complaint
lacks an allegation of proximate cause, an essential element of
any negligence suit. Generally, the question of proximate cause
is to be decided by the finder of fact. See Derdiarian v. Felix
Contracting Co., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 169,
414 N.E.2d 666, 670 (1980). However, before the finder of fact can
be presented with the issue of proximate cause, the Court must
find that a prima facie case exists. See, e.g., Nallan v.
Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 614-15,
407 N.E.2d 451, 458-60 (1980). Thus, plaintiff has the burden
of making a prima facie showing of proximate cause to this
Court in order to avoid dismissal pursuant to Rule 12(b)(6).
The aforementioned burden can be met by plaintiff generally
showing that defendant's negligence was a substantial cause of
the events which produced the injury. However, plaintiff need
not demonstrate that the precise manner in which the accident
happened, or the extent of the injuries, was foreseeable.
See Derdiarian, 434 N.Y.S.2d at 169, 414 N.E.2d at 670. As to
the complaint herein, this Court finds that the burden has been
met. Plaintiff has alleged within the complaint that American
Suzuki and Suzuki's alleged negligence in the production and
distribution of the outboard engine was a substantial link in
the causal chain of events which caused the drowning to occur.
This Court rejects defendants' contention that plaintiff's
negligence in attempting to cut the anchor line, decedent's
negligence in attempting to rescue her husband, or any "act of
nature," were intervening causes which clearly broke the causal
chain between defendants' conduct and the drowning. For any of
these acts to qualify as superseding causes they would have to
be unforeseeable in the normal course of events, or independent
or far removed from defendants' conduct. See e.g., Derdiarian,
434 N.Y.S.2d at 169, 414 N.E.2d at 670; Ventricelli v. Kinney
System Rent A Car, Inc., 45 N.Y.2d 950, 411 N.Y.S.2d 555, 556,
383 N.E.2d 1149, 1150 (1978). Contrary to defendants'
assertion, it cannot be said at this stage of the proceeding
that Suzuki's and American Suzuki's alleged negligence was
completely divorced from the accident by an intervening cause.
Furthermore, that Suzuki and American Suzuki may not have
foreseen the precise manner in which the boating accident
occurred does not preclude liability as a matter of law where
the general risk of a boating mishap and drowning were
foreseeable. See, Derdiarian, 434 N.Y.S.2d at 169-70, 414
N.E.2d at 670-71 (noting that what is foreseeable for purposes
of establishing intervening cause is generally a question for
the finder of fact).
Service of Complaint
The Court next turns to address defendant Suzuki's additional
ground for dismissal of the complaint against it based upon
noncompliance with the provisions of the Hague Convention, in
that the equivalent Japanese translation was not included with
the English version of the summons and complaint. Defendant
asserts that due to the alleged noncompliance, service of
process was improper, and therefore the Court lacks personal
jurisdiction over it. For the following reasons, the Court
rejects this argument.
The United States entered into the Hague Service Convention
("the Convention") in 1969, thereby undertaking a reciprocal
treaty obligation towards those countries which have also
adopted the Convention. Accordingly, since the Convention
entered into force for Japan in 1970, all documents served
between the United States and Japan which relate to civil or
commercial cases must comply with the provisions of the
Convention. The body designated to receive requests for service
coming from other countries, and to process service according
to the Convention provisions, is the Central Authority,
pursuant to Article 2 of the Treaty. It is Article Five of the
Convention which authorizes the Central Authority to require
translation, and is the focus of the dispute in the case at
Where a country has exercised its Article Five right to
require that the document to be served by the Central Authority
be translated into the official language of the foreign
country, courts have generally held that attempted service of
an untranslated document is invalid. See Service of Process
Abroad: A. Nuts and Bolts Guide, reproduced at 122 F.R.D. 63
(1989). The Government of Japan requires that when a document
is served under paragraph 1 of Article Five it be translated.
See Defendant's Memo. in Support at exhibit B. Moreover, the
Japanese have specified that if a request for service asks that
service be in accordance with either subsection (a) or (b) of
paragraph 1 of Article Five, and it is not accompanied by a
translation, the authority will return the request to the
requesting authority and will require a translation. See id.
However, according to the information offered by the Japanese
government with reference to its translation requirement, an
exception to the rule requiring translation is the "voluntary
service" of paragraph 2 of Article Five. Id. Accordingly, with
respect to the case at bar, in which plaintiff specified, "any
method of service is acceptable under the Hague Convention
Rules," see Supplemental Aff. at exhibit C, the analysis turns
on whether this request was properly read as one for voluntary
A textual analysis of Article Five, coupled with the facts of
the case at bar, reveal that plaintiff's request was correctly
deemed one for "voluntary service." "Consistent with the
preamble of the Convention, the request form is designed to
simplify and expedite service by providing the Central
Authority with information in a standardized fashion."
Taylor v. Uniden Corp. of Am., 622 F. Supp. 1011, 1016 (E.D.Mo.
1985). In the instant case, if the Central Authority of Japan
had found the documents inadequate they could have returned the
summons and complaint in an attempt to obtain a translation,
pursuant to its own guidelines. The Central Authority did no
such thing. It thus follows that the Central Authority
interpreted plaintiff's request as one for voluntary service.
Accordingly, plaintiff's summons and complaint did not need to
be translated. Moreover, there was not any rejection of service
by defendant to indicate that service was not voluntary.
Indeed, defendant's clerk
accepted service of the summons and complaint. Accordingly,
Suzuki's argument that service was improper is without merit.
For the reasons stated above, the Court finds that plaintiff
effected service of the summons and complaint sufficient to
satisfy the requirements of the Hague Convention, and that the
complaint sufficiently alleges a prima facie statement of
proximate cause. Accordingly, American Suzuki and Suzuki's
motion for dismissal, pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, is denied.