United States District Court, Southern District of New York
March 30, 2000
HENRY HEREDIA, PLAINTIFF,
TRANSPORT S.A.S., INC. AND MERCURIO PRESENZA, DEFENDANTS.
The opinion of the court was delivered by: Scheindlin, District Judge.
OPINION AND ORDER
On December 16, 1999, defendants Transport S.A.S., Inc.
("Transport") and Mercurio Presenza removed this action from New
York state court to the United States District Court for the
Southern District of New York. Plaintiff Henry Heredia now seeks
to remand the case to state court alleging that defendants'
removal was untimely. For the reasons set forth below,
plaintiff's motion to remand is granted.
The following facts are undisputed. Plaintiff is a resident of
Bronx County, New York. See Defendants' Notice of Removal, Ex.
C to 1/13/00 Affidavit of Alex Muller, Attorney for Plaintiff, in
Support of Motion to Remand to State Court ("Muller Aff."), ¶ 5.
Defendants are both citizens of Quebec, Canada. See id. ¶ 6. On
January 20, 1999, plaintiff and defendant Presenza were involved
in an automobile accident at the Throgs Neck Bridge, which is
located near the intersection of 177th Street and Harding Avenue
in Bronx County, New York. See id. ¶ 3. At the time of the
accident, Presenza was driving a truck registered to defendant
Transport. See 1/20/99 Police Accident Report, Ex. A to
Affirmation of Richard Gallo, Attorney for Defendants, in
Opposition to Remand ("Gallo Aff.").
On September 29, 1999, plaintiff filed a summons and complaint
in the Supreme Court of the State of New York, Bronx County (the
"Supreme Court"). See Copy of Summons and Index Number Receipt,
Ex. A to Muller Aff. The state court complaint seeks damages for
personal injuries arising out of the parties' automobile
accident, which plaintiff alleges was caused by Presenza's
negligence. See Defendants' Notice of Removal, Ex. C to Muller
Aff., ¶¶ 2-3.
On October 5, 1999, pursuant to New York Vehicle and Traffic
Law section 253*fn1 which sets forth procedures for service of
non-resident motorists, plaintiff delivered the summons and
complaint to an authorized agent in the office of New York's
Secretary of State (the "Secretary of State"). See Affidavit of
Service, Ex. B to Muller Aff. The following day, the Secretary of
State sent notice of service and a copy of the summons and
complaint by registered mail to Presenza in Quebec, Canada. See
Notice as to Service of Process ("Notice"), Ex. B to Muller
Aff.*fn2 On October 14, Presenza signed the return receipt,
indicating that he had received the notice of service and a copy
of the summons and complaint. See 10/14/99 Return Receipt, Ex.
B to Muller Aff. The summons, complaint and notice of service
were written only in English, while the return receipt was
written in both English and French. See Copy of Summons, Ex. A
to Muller Aff.; Notice & Return Receipt, Ex. B to Muller Aff.
On December 16, 1999, defendants removed the action to this
Court pursuant to the general removal statute, 28 U.S.C. § 1441.
See Notice of Removal, Ex. C to Muller Aff. Defendants' removal
was based on the diversity jurisdiction of the federal district
courts. See id. at ¶¶ 7-8; see also 28 U.S.C. § 1332.
Plaintiff filed the instant motion to remand on January 14, 2000.
II. Legal Standard
Removal of actions from state court is authorized by § 1441
which provides that "any civil action brought in a State
court of which the district courts have original jurisdiction,
may be removed by the defendant or the defendants, to the
district court. . . . where such action is pending."
28 U.S.C. § 1441(a). "In light of the congressional intent to restrict
federal court jurisdiction, as well as the importance of
preserving the independence of state governments, federal courts
construe the removal statute narrowly, resolving any doubts
against removability." Lupo v. Human Affairs Int'l, Inc.,
28 F.3d 269, 274 (2d Cir. 1994) (internal quotations omitted). The
defendant bears the burden of establishing by "competent proof"
that removal is proper in the event plaintiff moves to remand the
action. See R.G. Barry Corp. v. Mushroom Makers, Inc.,
612 F.2d 651, 655 (2d Cir. 1979); see also United Food & Commercial
Workers Union v. CenterMark Props. Meriden Square, Inc.,
30 F.3d 298, 301 (2d Cir. 1994).
Procedures for removal are set forth in 28 U.S.C. § 1446.
Pursuant to § 1446(b), notice of removal must be filed "within
thirty days after the receipt by the defendant, through service
or otherwise, of a copy of the initial pleading." Thus, once a
defendant receives a copy of the initial pleading — in this case,
the summons and complaint — the thirty-day period for filing
notice of removal is triggered, provided that service of the
initial pleading is proper. See Murphy Bros. v. Michetti Pipe
Stringing, 526 U.S. 344, 347-48, 119 S.Ct. 1322, 143 L.Ed.2d 448
(1999) ("[A] named defendant's time to remove is triggered by
simultaneous service of the summons and complaint, or receipt of
the complaint, `through service or otherwise,' after and apart
from service of the summons, but not by mere receipt of the
complaint unattended by any formal service.").
Plaintiff contends that the case must be remanded because
defendants' notice of removal was filed after expiration of the
thirty-day time period set forth in § 1446(b). Defendants concede
that they filed the notice of removal more than thirty days after
Presenza received a copy of the summons and complaint. However,
defendants argue that Presenza's receipt of the summons and
complaint did not constitute receipt of the initial pleading for
purposes of triggering the thirty-day removal period because
plaintiffs service of those documents was improper.
Defendants' allegation of improper service is premised upon
three related arguments. First, defendants contend that
plaintiff's service must comply with both New York law and the
Hague Convention. Second, defendants argue that plaintiff's
service was inadequate under the Hague Convention because neither
the summons nor the complaint was translated into French,
defendants' native language. Third, defendants argue that even
assuming plaintiff's service was proper under the Hague
Convention, it violated due process because the English documents
failed to provide defendants with actual notice of the pending
litigation. Defendants' claims are addressed in turn below.
A. Applicability of the Hague Convention
As set forth supra Part I, it is undisputed that plaintiff
served a copy of the summons and complaint upon the Secretary of
State, and that the Secretary of State subsequently acted on
behalf of plaintiff by sending notice of the service and a copy
of the summons and complaint to the defendant by registered mail
with return receipt requested. See Affidavit of Service,
Notice, & Return Receipt, Ex. B to Muller Aff. Accordingly,
plaintiff complied with the service requirements of section 253
which provides as follows:
Service of such summons shall be made by mailing a
copy thereof to the Secretary of State . . . and such
service shall be sufficient service upon such
non-resident provided that notice of such service and
a copy of the summons and complaint are forthwith
sent by or on behalf
of the plaintiff to the defendant by certified mail
or registered mail with return receipt requested.
N Y Veh. & Traf. Law § 253.
Although plaintiff followed the procedure established by
section 253, proper service of the summons must also comply with
the Convention on Service Abroad of Judicial and Extrajudicial
Documents in Civil and Commercial Matters, Nov. 15, 1965, 20
U.S.T. 361 ("Hague Convention" or "Convention"). Article 1 of the
Hague Convention states that "[t]he present Convention shall
apply in all cases, in civil or commercial matters, where there
is occasion to transmit a judicial or extrajudicial document for
service abroad." 20 U.S.T. 361, Art. 1. In Volkswagenwerk v.
Schlunk, 486 U.S. 694, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988),
the Supreme Court analyzed the applicability of the Hague
Convention and found that "[i]f the internal law of the forum
state defines the applicable method of serving process as
requiring the transmittal of documents abroad, then the Hague
Service Convention applies." Id. at 699, 108 S.Ct. 2104.
Section 253 requires that the Secretary of State mail copies of
the summons and complaint to non-resident defendants. Thus, New
York law requires the transmittal of documents abroad and the
Hague Convention applies. Accordingly, plaintiff's service must
meet the requirements of the Hague Convention in addition to the
procedures established by section 253. See, e.g., Taft v.
Moreau, 177 F.R.D. 201, 204 (D.Vt. 1997) (finding that Hague
Convention applies in Vermont personal injury action where
defendants, citizens of Quebec, received summons and complaint in
As a preliminary matter, it should be noted that service of
process by registered mail is one of several methods of service
permitted by the Hague Convention. Article 10 of the Convention
states: "Provided the State of destination does not object, the
present Convention shall not interfere with . . . the freedom to
send judicial documents, by postal channels, directly to persons
abroad." 20 U.S.T. 361, Art. 10. This freedom to send judicial
documents includes service of process. See Ackermann v. Levine,
788 F.2d 830, 838-39 (2d Cir. 1986) ("The service of process by
registered mail did not violate the Hague Convention. Plaintiffs
declined to follow the service route allowed under Article 5 of
the Convention, which permits service via a `Central Authority'
of the country in which service is to be made. Instead,
plaintiffs chose to follow the equally acceptable route allowed
under Articles 8 and 10"). Canada does not object to service by
postal channels. See 20 U.S.T. 361, History, Ancillary Laws &
Directives. Thus, service by registered mail in Quebec is
adequate service under the Convention. See Taft, 177 F.R.D. at
203 (service of process by registered mail in Quebec is in
compliance with the Convention).
B. Translation Requirement
In their opposition to plaintiff's motion to remand, defendants
contend that service was improper under the Hague convention
because the summons and complaint were not translated from
English into French, Presenza's native language and the official
language of Quebec province. However, it is well-settled that the
translation requirement is triggered only when it is the Central
Authority that serves the document, an alternative method of
service that is set forth in Article 5 of the Convention. See
20 U.S.T. 361, Art. 5 ("If the document is to be served [by the
Central Authority], the Central Authority may require the
document to be written in, or translated into, the official
language . . . of the State addressed."). Canada does require
translation of documents into French for recipients of service
under Article 5. See 20 U.S.T. 361, History, Ancillary Laws &
Directives. There is, however, no similar requirement by Canada
or by the Convention for translation when service is effected by
direct mail under Article 10. Thus, where service is made by
registered mail under Article 10, the
served documents need not be translated. See Taft, 177 F.R.D.
at 203 ("Documents served upon Quebec residents or citizens under
Article 10(a) need not be translated into French in order to
comply with the Hague Convention."); Lemme v. Wine of Japan
Import, 631 F. Supp. 456, 464 (E.D.N.Y. 1986) ("In the first
place, the translation `requirement' is triggered only when it is
the Central Authority that serves the document. . . . Where the
method used is direct postal service under section 10(a), the
document need not be translated."); Weight v. Kawasaki Heavy
Indus., 597 F. Supp. 1082, 1086 (E.D.Va. 1984) ("A Japanese
translation is required only when the service of process is
transmitted through the `Central Authority' pursuant to Article 5
of the Convention. . . . However, Article 10(a) of the Convention
contains no such requirement for direct postal service.").
Defendants seek to distinguish Lemme and Weight by noting
that service here was made in Canada not Japan. However, under
the Convention, service in Japan and Canada are identical.
Neither country requires translation for Article 10 service.
See 20 U.S.T. 361, History, Ancillary Laws & Directives.
Moreover, the Taft case involved service in Quebec and did not
require a French translation. See Taft 177 F.R.D. at 201.
C. Due Process Requirements
In addition to the Hague Convention, service of process must
also satisfy constitutional due process. See Ackermann, 788
F.2d at 838. Defendants argue that because plaintiff failed to
translate the documents into French, defendants were denied due
process of law.
Due process requires that service by mail must be reasonably
calculated to give adverse parties notice of the action. See
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314,
70 S.Ct. 652, 94 L.Ed. 865 (1950) (due process permits service of
process by mail so long as such service provides "notice
reasonably calculated . . . to provide interested parties notice
of the pendency of the action"). Defendant contends that because
Presenza does not speak English, service of English documents
"was not reasonably calculated to give actual notice to the
defendants." See Defendants' Memorandum of Law in Opposition to
the Plaintiff's Motion to Remand at 6 (emphasis in original). In
advancing this argument, defendants rely exclusively on the fact
that the police officer at the Throgs Neck Bridge accident scene
commented on Presenza's "limited English" abilities in his
accident report. See id. (citing 1/20/00 Police Accident
Report, Ex. A to Gallo Aff.). However, the police officer also
reported that Presenza stated: "I checked my mirror before
changing lanes. I didn't see any car on that side." 1/20/00
Police Accident Report, Ex. A to Gallo Aff. Given the level of
competence in English demonstrated by Presenza's comments to the
police officer, and the fact that Presenza signed the return
receipt that accompanied the summons and complaint, defendant
fails to provide competent proof that plaintiff's service of
process was not reasonably calculated to give notice.
Not only did plaintiff's service of process comport with the
procedures set forth in section 253, it also satisfied the
requirements of the Hague Convention and due process. Thus, the
thirty-day notice of removal set forth in § 1446(b) was triggered
on October 14, when Presenza received a copy of the summons and
complaint. Accordingly, defendants' removal of the case on
December 16 — more than sixty days following Presenza's receipt
of the initial pleading — was untimely and the case must be
remanded to state court.
For the foregoing reasons, plaintiff's motion to remand is
granted. The Clerk of the Court is directed to remand this
case to state court and to close this federal case.