Ralph E. Vorhees, To His Own Use and To The Use of Liberty Mutual Insurance Company and Nancy Vorhees, His Wife v. Fischer & Krecke, 697 F.2d 574, 4th Cir. (1983)

697 F.
2d 574
Ralph E. VORHEES, to his own use and to the use of Liberty

Mutual Insurance Company and Nancy Vorhees, his
wife, Appellants,
v.
FISCHER & KRECKE, Appellee.
No. 82-1085.
United States Court of Appeals,

Fourth Circuit.
Argued Oct. 4, 1982.
Decided Jan. 6, 1983.
William F. Ryan, Jr., Louis G. Close, Jr., Baltimore, Md. (Whiteford,

Taylor, Preston, Trimble & Johnston, Eugene A. Edgett, Jr., Baltimore,
Md., Don Benter, Pikesville, Md., on brief), for appellants.
William P. Baker, Baltimore, Md. (Baker & Baker, P.A., Baltimore, Md.,
on brief), for appellee.
Before MURNAGHAN and CHAPMAN, Circuit Judges and BRYAN,
Senior Circuit Judge.
CHAPMAN, Circuit Judge:
Plaintiffs appeal the dismissal of their personal injury diversity action by the
district court for failure to properly effect service of process on the West
German defendant, Fischer & Krecke, GmbH & Co., (Fischer & Krecke). The
district court found that service of process was invalid because it was not
effected in compliance with the Convention on the Service of Judicial and
Extrajudicial Documents in Civil or Commercial Matters (Hague Convention).
Entered into Force for the United States, February 10, 1969, 20 U.S.T. 361,
T.I.A.S. 6638, 658 U.N.T.S. 163. Without reaching the merits of the lower
court's conclusion, we find that service of process should have been quashed
without dismissing the case. We therefore remand the case with instructions to
allow the plaintiffs a reasonable time in which to attempt to serve process
according to the dictates of the Hague Convention.
Personal jurisdiction over Fischer & Krecke was asserted in the District Court
for the District of Maryland based on Federal Rules of Civil Procedure 4(e) and
4(i)(1)(D). Defendant, which has its place of business in and was established
under the laws of the Federal Republic of Germany (West Germany), moved to
dismiss, asserting inter alia that service of process was insufficient because of
the plaintiffs' failure to comply with the Hague Convention. Entered into
between the United States, West Germany and eighteen other countries, the
Hague Convention is concerned with the service of process on foreign
defendants who reside in countries that are parties to the treaty.1 The terms of
the treaty provide that each signatory country may reject certain general
provisions and append specific requirements for valid service of process within
that country. In signing the treaty, West Germany specified that judicial
documents be forwarded through one of various designated central authorities
and that such documents be written in, or translated into, the German language.
In the instant case, the summons and complaint were mailed directly to Fischer
& Krecke and did not include a German language translation.
The issue before the district court was whether the terms of the treaty were in
conflict with and superseded the provision of the Federal Rule of Civil
Procedure for the purposes of service of process on Fischer & Krecke. The
lower court found that there was a direct conflict between the rule and the treaty
in regard to service of process on the West German defendant. The court
further found that the Hague Convention was a self-executing treaty because it
establishes affirmative and judicially enforceable obligations without requiring
any implementing legislation. Cook v. United States, 288 U.S. 102, 119, 53
S.Ct. 305, 311, 77 L.Ed. 641 (1933); Whitney v. Robertson, 124 U.S. 190, 194,
8 S.Ct. 456, 458, 31 L.Ed. 386 (1888). A self-executing treaty is considered to
be of equal dignity with acts of Congress and, where the two conflict, the latter
in time prevails. Cook, 288 U.S. at 119, 53 S.Ct. at 311; Whitney, 124 U.S. at
194, 8 S.Ct. at 458. Since Federal Rule of Civil Procedure 4(i) became effective
on July 1, 1963, while the Hague Convention was entered into force for the
United States on February 10, 1969, the district court concluded that the treaty
superseded the rule in the instant case.
Based on these findings, the district court dismissed the action without
prejudice to the plaintiffs to refile the complaint and to serve the papers
pursuant to the Hague Convention. At the time that the district court's order
was entered, however, the statutes of limitations had run on the plaintiffs'
various causes of action. Without reaching the question of the consequences of
failure to conform to the treaty, we find that the action should not have been
dismissed until the plaintiffs were given a reasonable opportunity to attempt to
effect valid service of process on the defendant in a manner complying with the
Hague Convention. Jim Fox Enterprises, Inc. v. Air France, 664 F.2d 63, 65
(5th Cir.1981); Stanga v. McCormick Shipping Corp., 268 F.2d 544, 554 (5th
Cir.1959); Bailey v. Boilermakers Local 667 of International Brotherhood of
Boilermakers, 480 F.Supp. 274, 278 (N.D.W.Va.1979) ("If the first service of
process is ineffective, a motion to dismiss should not be granted, but rather the
Court should treat the motion in the alternative, as one to quash the service of
process and the case should be retained on the docket pending effective
service." Citing Stern v. Beer, 200 F.2d 794, 795 (6th Cir.1952)).
5
The judgment of the district court is accordingly
REMANDED.
The broad scope of the treaty is clearly stated. The convention is to apply "in all
cases, in civil or commercial matters, where there is occasion to transmit a
judicial or extrajudicial document for service abroad." Hague Convention,
supra, art. I

Ralph E. Vorhees, To His Own Use and To The Use of Liberty Mutual Insurance Company and Nancy Vorhees, His Wife v. Fischer & Krecke, 697 F.2d 574, 4th Cir. (1983)

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697 F.

Ralph E. VORHEES, to his own use and to the use of Liberty

United States Court of Appeals,

William F. Ryan, Jr., Louis G. Close, Jr., Baltimore, Md. (Whiteford,

The judgment of the district court is accordingly

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