Contour-Sierra Inc. v. AEBI Schmidt Intn'l, AG ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CONTOUR-SIERRA INC., No. 2:22-CV-00414-JAM-JDP 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANT’S MOTION TO QUASH SERVICE 14 AEBI SCHMIDT INTERNATIONAL, AG, 15 Defendant. 16 17 This matter comes before the Court on Aebi Schmidt 18 International AG’s (“Defendant”) motion to dismiss this action 19 under Federal Rule of Civil Procedure (“FRCP”) 12(b)(5). See 20 Def.’s Mot. to Dismiss (“Mot.”), ECF No. 11. Contour-Sierra, 21 Inc. (“Plaintiff”) opposed the motion and Defendant replied. See 22 Opp’n, ECF No. 19; Reply, ECF No. 20. For the reasons set forth 23 below, the Court treats Defendant’s motion to dismiss as a motion 24 to quash, which the Court grants.1 25 /// 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for November 15, 2022. 1 I. FACTUAL ALLEGATIONS 2 Plaintiff commenced this action alleging Defendant breached 3 the parties’ exclusive dealership agreement. See Compl. ¶¶ 52- 4 84, ECF No. 1. Since Defendant is a Swiss subject, Plaintiff 5 filed its complaint in this Court under 28 U.S.C. § 1332(a)(2). 6 Id. ¶¶ 1, 7. Plaintiff’s complaint states a copy of the 7 exclusive dealership agreement and notice terminating the 8 agreement was annexed to and incorporated into the complaint as 9 Exhibits A and B, respectively. Id. ¶¶ 13, 47. Both exhibits, 10 however, are absent from Plaintiff’s filed complaint. See 11 generally Compl. 12 After it filed its complaint, Plaintiff served Defendant 13 according to the Convention on the Service Abroad of Judicial and 14 Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 15 1965 (“the Hague Convention”), [1969] 20 U.S.T. 361, T.I.A.S. No. 16 6638. See Mot. at 1-2, 4. The Hague Convention is an 17 international treaty that regulates how service is executed 18 between citizens of its’ signatories—such as the United States 19 and Switzerland. See 20 U.S.T. 361. As a result, the Hauge 20 Convention governed Plaintiff’s service of Defendant. 21 Defendant now moves to dismiss Plaintiff’s action under FRCP 22 12(b)(5) for insufficient service of process. See Mot. at 1, 2. 23 Defendant’s motion argues dismissal is warranted because 24 Plaintiff: (1) violated FRCP 10(c) by not attaching the 25 incorporated exhibits to its complaint; and (2) did not comply 26 with the Hague Convention’s requirement that Plaintiff translate 27 the unattached exhibits into the appropriate Swiss language of 28 German, French, or Italian. Id. at 3-5; see also 1 Declaration/Reservation/Notification, HCCH, https://www.hcch.net/ 2 en/notification s/?csid=424&disp=resdn. Defendant argues 3 Plaintiff’s errors “prejudiced Defendant by depriving it of the 4 service to which it is legally entitled” and “needed to fully 5 investigate and analyze Plaintiff’s asserted facts and legal 6 claims.” Mot. at 5. Plaintiff argues Defendant was properly 7 served even though it admits it failed to attach the incorporated 8 exhibits to the complaint. See Opp’n at 3-4. 9 II. OPINION 10 A. Legal Standard 11 A 12(b)(5) motion challenges the mode or method of service 12 of the summons and complaint. See Ringgold v. Burgett, Inc., 13 No. 22-2CV-00836-DAD-CKD-PS, 2022 WL 8044117, at *1 (E.D. Cal. 14 Oct. 17, 2022), report and recommendation adopted, No. 2:22-CV- 15 00836-DAD-CKD-PS, 2022 WL 16820859 (E.D. Cal. Nov. 8, 2022). 16 Federal courts only acquire jurisdiction over a defendant after 17 the defendant is properly served under FRCP 4. See Omni Capital 18 Int'l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). When 19 a defendant challenges service, the plaintiff bears the burden of 20 demonstrating its sufficiency under FRCP 4. See Brockmeyer v. 21 May, 383 F.3d 798, 801 (9th Cir. 2004). If the service of 22 process is found insufficient, “[t]he choice between dismissal 23 and quashing service of process is in the district court’s 24 discretion.” See S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 25 1288, 1293 (9th Cir. 2006). 26 B. Analysis 27 Under FRCP 10(c) “[e]xhibits attached to the complaint are 28 part of the complaint for all purposes.” See Fed. R. Civ. P 1 10(c); Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). 2 Here, because Plaintiff failed to attach the exclusive dealership 3 agreement and notice terminating the agreement, Plaintiff clearly 4 did not serve Defendant with its entire complaint—“which includes 5 all exhibits and attachments.” Ringgold, 2022 WL 8044117 at *2. 6 In turn, Plaintiff did not comply with Rule 4, “which requires 7 service of a summons together with a complete copy of the 8 operative complaint . . . .” Id. Moreover, in its defense, 9 Plaintiff only cites inapposite cases outside this Court’s 10 jurisdiction that fail to demonstrate Rule 4’s satisfaction. See 11 Opp’n at 1-5. The Court thus concurs with Defendant that 12 Plaintiff’s service was inadequate. 13 The Court, however, does not find Plaintiff failed to comply 14 with the Hague Convention. For Defendant’s argument under the 15 Hague Convention to apply, Plaintiff would have had to: 16 (1) attach the incorporated exhibits to its complaint; and 17 (2) failed to translate them to the appropriate Swiss language. 18 Neither of these actions occurred. Furthermore, the Hague 19 Convention does not define what a complete complaint is or 20 specify what documents a defendant must be served. See generally 21 20 U.S.T. 361. In other words, the Hague Convention itself does 22 not require Plaintiff to serve Defendant with the incorporated 23 exhibits. The Court thus finds Defendant’s argument under the 24 Hague Convention misplaced. 25 Nonetheless, given Plaintiff’s shortcomings under FRCP 26 10(c), Defendant’s 12(b)(5) motion must be granted. In like 27 situations, however, “[c]ourts have regularly held[] that instead 28 of dismissing the entire action for insufficient service, service nee enn ene ee nn nn eo nn on nn ne I OD 1 should simply be quashed, allowing the plaintiff to serve 2 properly.” Teknekron Mgmt., Inc. v. Quante Fernmeldetechnik 3 GmbH, 115 F.R.D. 175, 177 (D. Nev. 1987). Accordingly, this 4 Court will treat Defendant’s motion to dismiss as a motion to 5 quash and find Plaintiff’s service of its complaint to be 6 insufficient. 7 TILT. ORDER 8 For the reasons set forth above, the Court GRANTS g | Defendant’s Motion to Quash Service. 10 IT IS SO ORDERED. 11 Dated: December 13, 2022 12 A 7 13 JOHN A. MENDEZ 14 SENIOR UNITED*STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28