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Kenneth v. Mustang Express Trucking

March 21, 2006

KENNETH AND LORI WOOD PLAINTIFFS,
v.
MUSTANG EXPRESS TRUCKING, INC., "K" LINE AMERICA, INC., KAWASAKI KISEN KAISHA, LTD., G.M. SERVICES, INC., LUIZ CHAVEZ, AND JULIO CUELLAR, DEFENDANTS.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiffs, Kenneth and Lori Wood, ("plaintiffs" or "the Woods") bring this action for negligence against defendants Mustang Express Trucking, Inc., ("Mustang"), "K" Line America, Inc., ("K Line"), Kawasaki Kisen Kaisha, Ltd.,("Kawasaki" or "defendant"), G.M. Services, Inc., ("GM"), Luiz Chavez, ("Chavez"), and Julio Cuellar, ("Cuellar"). Plaintiffs allege that each defendant is liable for the injuries Kenneth Wood sustained in a work related accident. Defendant Kawasaki moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process, 12 (b)(2) for failing to state sufficient allegations in the Complaint to obtain personal jurisdiction over Kawasaki, and 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiffs oppose Kawasaki's motion to dismiss the Complaint.

For the reasons set forth below, defendant's motion to dismiss is granted pursuant to Federal Rule of Civil Procedure 12(b)(5).

BACKGROUND

On March 26, 1998, the plaintiff, Kenneth Wood, was employed by Toshiba as a forklift operator at the Toshiba plant in Elmira, New York. While operating the forklift in the process of loading Toshiba components onto a tractor trailer truck, the truck moved forward and the forklift fell into the gap between the trailer and the loading dock, thus causing the injuries claimed by the plaintiff.

PROCEDURAL HISTORY

In a Complaint dated August 2000, plaintiffs set forth causes of action against the following defendants: 1) Mustang which provided and arranged trucking services to and from the Toshiba plant, 2) Luis Chavez, a truck driver, 3)Chavez's employer, G.M. Services Express Inc., and 4) Julio Cuellar, owner of the tractor. In February 2001, plaintiffs amended their complaint to add K-Line as an additional defendant as owner of the trailer. On November 3, 2004, plaintiffs amended their complaint a second time adding yet another defendant, Kawasaki (the sole moving defendant in this present motion) as owner or lessee of the trailer component parts. Kawasaki, a Japanese corporation, was served with a summons and complaint by international registered mail directed to its office in Japan.

The summons and complaint were filed with the Court on December 20, 2004. Plaintiffs claim that service was effectuated on December 21, 2004. Kawasaki now moves to dismiss the claims against itself pursuant to Federal Rule of Civil Procedure 12(b) on grounds that: the international mail service was ineffective pursuant to Fed.R.Civ.P. 12(b)(5), the complaint inadequately pleads a basis for personal jurisdiction over Kawasaki pursuant to Fed.R.Civ.P. 12(b)(2), and the matter is time-barred against Kawasaki pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs oppose the motion.

DISCUSSION

I. Fed.R.Civ.P. 12(b)(5) Motion to Dismiss-Kawasaki, a Japanese corporation, moves to dismiss plaintiffs' complaint challenging the validity of service of process pursuant to Federal Rule of Procedure 12(b)(5). Federal Rule of Civil Procedure 4 provides that service on a foreign corporation should be effectuated in accordance with applicable international treaties. Specifically, Rule 4 (f) provides:

Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:

(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents Japan is a signatory of the Hague Convention, thus it is essential to consider the applicable language of Article 10 of the Hague Convention on the Service Abroad of Judicial ...


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