MEMORANDUM OPINION AND ORDER
Pеnding before the Court is the motion of the defendant to dismiss this case pursuant to Rule 12(b)(1), (2), (4), and (5) of the Federal Rules of Civil Procedure. The memorandum accompanying the motion addresses only' the Rule 12(b)(5) justification — dismissal based upon insufficiency of service of process. The Court’s clerk, with notice to the defendant, contacted the plaintiffs counsel to remind him of his obligation to respond to the motion, yet the plaintiff failed to respond. Rather, plaintiffs counsel mailed to the Court many days later an unfiled motion requesting additional time to respond. 1 Nevertheless, with respect to the Rule 12(b)(1), (2), and (4) bases for dismissal, the motion is DENIED without prejudice pursuant to Local Rule 7.1(a), which requires Rule 12(b) motions to be supported by memo-randa. 2 With respect to the Rule 12(b)(5) justification, the motion is DENIED AS PREMATURE without prejudice.
I.
The plaintiff Debra Randolph filed this action in the Circuit Court of Wood County, West Virginia, on January 20, 1999. In her complaint, Randolph alleged that the defendant, Canadian resident Martin Hen-dry, had negligently driven his vehicle through a red light on Jаnuary 24, 1997 in Wood County, causing his vehicle to strike the vehicle in which Randolph was traveling. Randolph further alleged that she suffered “great pain of body and mind,” among other injuries, as a direct and proximate result of the collision.
The relevant facts are not in dispute. Because the defendant is a not a resident of West Virginia, and this action is one concerning the operator of a motor vehicle involved in an accident, the plaintiff sought to avail herself of the service-of-proeess procedures outlined in West Virginia Code section 56-3-31(e). That subsection provides:
Service of process upon a nonresident shall be made by leaving the original and two copies of both the summons and complaint, together with the bond certificate of the clerk, and the fee ... with the secretary of state ... and saidservice shall be sufficient upon the nonresident defendant ... Provided, That notice of service and a copy of the summons and complaint shall be sent by registered or certified mаil, return receipt requested, by the secretary of state to the nonresident defendant. The return receipt signed by the defendant or his or her duly authorized agent shall be attached to the original summons and complaint and filed in the office of the clerk of the court from which process is issued. In the event the registered or certified mail sent by the secretary of state is refused or unclaimed by the addressee or if the addressee has moved without any forwarding address, the registered or certified mail returned to the secretary of state, or to his or her office, showing thereon the stamp of the post-office department that delivery has been refused or not claimed or that the addressee has moved without any forwarding address, shall be appended to the original summons and complaint and filed in the clerk’s office of the court from which process issued.
w. Va. Code § 56-3-31(e) (Supp.1998).
It appears that the plaintiff indeed caused the Secretary of State to attempt to effect service upon the dеfendant by use of registered mail, return receipt requested. However, it also appears that the registered mail sent by the Secretary of State was unclaimed by the defendant, and was thus returned to the Secretary of State and thereafter filed in the clerk’s office.
' As contemplated by the West Virginia Code, the plaintiff next attempted to effect service utilizing the procedures outlined in section 56 — 3—31(g). That subsection provides:
In the event service of process upon a nonresident defеndant cannot be effected through the secretary of state as provided by this section, service may be made upon the defendant’s insurance company. The plaintiff must file with the clerk of the circuit court an affidavit alleging that the defendant is not a resident of this state; that process directed to the secretary of state was sent by registered or certified mail, return receipt requested; that the registered or certified mail was returned to the office of the secretary of state showing the stamp of the post-office department that delivery was refused or that the notice was unclaimed or that the defendant addressee moved without any forwarding address; and that the secretary of state has complied with the provisions of subsection (e) herein. Upon receipt of process the insurance company may, within thirty days, file an answer or other pleading and take any action allowed by law in the name of the defendant.
Id. § 56-3-31(g).
The plaintiff served the summons and complаint upon the defendant’s insurance company’s claims adjuster, Fred Rusmi-sell, by certified mail at his Clarksburg, West Virginia address on March 11, 1999. She subsequently filed the return receipt. A review of the Circuit Court of Wood County docket sheet in this case does not reveal that the plaintiff filed an accompanying affidavit. (See Notice of Removal, at Ex. 2.)
II.
It is well-established that state law governs whether service of process is properly effected prior to removal.
See Eccles v. National Semiconductor Corp., 10
F.Supp.2d 514, 519 (D.Md.1998); 4A Charles A. Wright & Arthur R. Miller, Federal Practice
&
Prooedure § 1082 (2d ed. 1987 & Supp.1999). The defendant argues that the acts taken by the plaintiff to effect service were insufficient under West Virginia law.
3
The defendant also
A.
The Hague Convention is a multinational treaty formulated in 1964, approved by representatives of the twenty-three states that were members of the Tenth Session of the Hague Conference of Private International Law, and ratified or accessioned to by at least thirty-six states, including the United States and Canada.
Volkswagenwerk Aktiengesellschaft v. Schlunk,
[3] Article 1 of the Hague Convention provides unambiguously that its terms apply “in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”
4
Hague Convention, 20 U.S.T. at 362;
Volkswagenwerk,
The Convention allows the law of the applicable forum — -here, the laws of the state of West Virginia prior to removal — to describe what steps constitute service of process. Under West Virginia’s Nonresident Operators of Motor Vehicles law as applied to this case, service of process is not effective unless the plaintiff has caused a transmission for service abroad.
See
w. Va. Code § 56-3-31;
Curcuruto v. Cheshire,
West Virginia Code section 56-3-31 requires the transmission of documents in order to effect service of process abroad. A plaintiff seeking to avail herself of that section’s provisions must therefore comply
B.
The purpose of the Hague Convention is to articulate and establish an efficient method of effecting service of documents internationally. Hague Convention, 20 U.S.T. at 362;
Koehler v. Dodwell,
Articles 8, 10 and 11 provide alternatives to the Central Authority method of effecting service. See id. at 363-64. These means are provided for in the Hague Convention, but member states may nevertheless opt out of them if they so choose. Id. Of relevance here are the options provided for in Article 10. That Article reads as follows:
Provided the State of destination does not object, the present Convention shall not interfere with -
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.
(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.
(c) the freedom of any person interested in a judicial proceeding to effect ' service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.
Id. at 363.
It has been suggested that no single provision in the Hague Convention hаs received as much judicial attention as Article 10(a). Franklin B. Mann, Comment,
Foreign Service of Process by Direct Mail Under the Hague Convention and the Article 10(a) Controversy: Send v. Service,
21 Cumb. L. Rev. 647, 653 (1990/1991). Despite the persistent flow of judicial ink, broad disagreement over its meaning persists. Specifically, courts disagree over the definition of the word “send” in Article 10(a). Some have determined that the word “send” was intended to be used synonymously with “service of process,” especially in light of the purpose of the Hаgue Convention which is to facilitate service abroad. Under that view, service of process by mail is allowable if the defendant’s state has levied no objection to the Article.
See Ackermann v. Levine,
Other courts have concluded that, because the word “service” is used elsewhere in parts (b) and (c) of the Article, the word “send” must have a different meaning from “service.” Those courts hold that Article 10(a) allows the transmission of documents other than process.
See Bankston v. Toyota Motor Corp.,
While the Fourth Circuit has not yet addressed the matter directly, several district courts within the circuit have — with conflicting results.
See Fleming,
A fundamental tenet of treaty construction is that the words be read in overall context. The purpose of the Hague Convention is to articulate and establish an efficient method of effecting service of documents internationally. The primary method created by the Convention — and the only method that is mandatory on the signatory states — is service through the designated “Central Authority.” However, the member states sought also to describe alternative methods of service in Articles 8, 10, and 11. Those methods are optional on the member states.
The Hague Convention is intended to provide methods of service, and Article 10(a) clearly describes one such method. Were that not the case — if the contrary interpretation were correct — then the Article 10(a) provisions would be terribly misplaced. It would be a provision that allows for the use of the mails, but would not provide any guidance on the issue of service of documents abroad — the only issue that the Hague Convention was intended to address. 5 To read Article 10(a) as not allowing for service of documents, including service of process, where the recipient state has not objected thereto, would impermissibly isolate Article 10(a) from the overall context of the Convention.
Practical considerations lend further support to the Court’s interpretation. Article 10 allows states to opt out of its provisions. Those that interpret Article 10(a) as merely acknowledging that persons involved in litigation can use the mails to correspond, but not for service, would
The Court also notes that the State Department — in direct response to the Eighth Circuit’s holding in Bankston — has interpreted Article 10(a) as authorizing service of process by mail if the recipient country has not objected. .Letter from Alan J. Kreczco, U.S. Dep’t of State Deputy Legal Advisor, to Admin. Off. of the U.S. Courts and Nat’l Center for State Courts (March 14, 1991), reprinted in pari in United States Department of State Opinion Regarding the Bankston Case and Service by Mail to Japan under the Hague Service Convention, 30 I.L.M. 260, 261 (1991). In so doing, the State Department expressly rejected the Bankston interpretation. “We therefore believе that the decision of the Court of Appeals in Bankston is incorrect to the extent that it suggests that the Hague Convention does not permit as a method of service the sending of a copy of the summons and complaint by registered mail to a defendant in a foreign country.” Id. While the opinion of the State Department is certainly not dispositive, this Court finds it persuasive, especially because it offers an indication of the intent of the drafters of the Convention that was not available to the Eighth Circuit. See Restatement (Third) Of Foreign Relations Law Of The United States § 326(2) (1986).
Finally, the Fourth Circuit’s recent decision in
Vorhees v. Fischer & Krecke
lends support for the Court’s interpretation of Article 10(a).
See Vorhees,
Article 10(a) of the Hague Convention authorizes service of judicial documents, including service of process that originates abroad and reaches recipients in a consenting member state by direct mail. Because Canada does not object to service by postal channels, service of process by mail is authorized in this case. See Hague Convention, 28 U.S.C. at 125 (Supp.1998) (“Canada does not object to service by postal channels.”).
C.
The conclusion that Article 10(a) allows foreign service of process by mail does not, however, satisfy the defendant’s concerns here. The defendant, without mention of the vast split in authority, surprisingly agrees that the Hague Conventiоn allows service of process by certified or registered mail. The defendant suggests, however, that courts so finding have “also stated that there
must
be evidence by way of return receipt that delivery by registered mail had been made in order for the service to be effective.” (Mem. in Supp. of Mot. to Dismiss of Def. Martin Hendry at 4
(citing Chowaniec v. Heyl Truck Lines, No.
90-C-07034,
There is no requirement within the Hague Convention that service of process be effected by use of registered mail and certainly no requirement that a return receipt be obtained.
See
Hague Convention, 20 U.S.T. 361. Rather, the Hague Convention provides the mechanism for service of process and leaves more detailed requirements up to the individual member nations to determine. Thus, whether a return receipt is required is a question wholly determined with reference to the applicable law of the forum seeking to obtain jurisdiction over the defendant and
III.
West Virginia Code section 56-3-31 diverges from the common law governing service of process.
Evans v. Holt,
The Circuit Court of Wood County docket sheet in this case does not indicate that the plaintiff filed an accompanying affidavit as required under West Virginia Code section 56-3-31(e).
(See
Notice of Removal, at Ex. 2.) Furthermore, the plaintiff served the summons аnd complaint upon the defendant’s insurance company’s claims adjuster, rather than upon the insurance company. The plaintiffs failures are fatal.
See Evans,
IV.
The mere fact that service has not yet been effected does not mandate dismissal. After the filing of their complaints, plaintiffs are granted time within which to locate defendants and to serve them. Pursuant to Rule 4(k) of the West Virginia Rules of Civil Procedure, the plaintiff must serve the summons and cоmplaint upon the defendant within 120 days after the filing of the complaint. Because the plaintiff filed the complaint on January 20, 1999, West Virginia law would allow her until May 20, 1999, to serve the summons and complaint upon the defendant. The defendant, apparently in possession of “some source of extrajudicial knowledge of this litigation’ after its filing,”
Eccles,
The defendant, in his brief, did not indicate how he might calculate that deadline now that this action has been removed to this Court. Plaintiffs counsel failed to submit any brief at all.
[10] When no defendant has been served," in an action removed to federal court from statе court, Rule 4(m) of the Federal Rules of Civil Procedure requires the plaintiff to serve the summons and complaint upon the defendant within 120 days from filing of the Notice of Removal in the federal court.
Motsinger v. Flynt,
The Court recognizes that the potential prejudicial impact of the Court’s calculations will be borne by future defendants who are not served within the time period set forth under state law and who therefore have state procedural justification for dismissal. Placement of the burden on that rare defendant’s shoulders is proper, however, because it is that defendant who makes the decision to remove the case to federal court and restarts the clock. Furthermore, restarting the clock for service upon removal eases a terribly unfair burden that could otherwise befall a plaintiff. That is, 'if the Court’s calculations are not the law, then a plaintiff filing a complaint in a. state that allows for service beyond 120 days — a plaintiff to whom state law might give a deadline of 180 days, for example — could find his case quickly removed by the defendant and dismissed by the federal court prior to the passing of the state deadline for violation of federal procedural requirements that mandate service in federal cases within 120 days. That untenable result would force cautious plaintiffs to abandon their stаte-created right to delay service beyond 120 days out of fear that federal procedural law might one day be applied retroactively to their case after the defendant’s unilateral act of removal.
Y.
The limited power of the federal government has been invoked in this action and the ease is now in the hands of the federal court. The unserved state court process has become null and void.
Beecher v. Wallace,
The motion to dismiss is DENIED AS PREMATURE without prejudice. The plaintiff must effect service of the summons and complaint upon the defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and no later than Tuesday, July 27, 1999. 7 All other scheduling dates, including those provided in the Order аnd Notice entered by the Court on April 6, 1999, are VACATED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented parties.
Notes
. That motion, made nearly a month after the time to respond had passed, is denied in a separate Memorandum Opinion and Order.
. Despite indications to the contrary, it is doubtful that the removing defendant truly intended to argue lack of subject matter jurisdiction as a basis for dismissal after alleging the existence of the same in its Notice of Removal.
. The defendant suggests that Federal law applies to the question of whether service was effective prior to removal “because the case is currently in federal court.” While that reasoning is accurate with respect to process served following removal pursuant to 28 U.S.C. § 1448, it is inaccurate with respect to service attempted prior to removal.
. The defendant suggests that "[b]ecause Mr. Hendry is a resident of Canada, service of process on him is governed by the Hague Conventiоn.” The Hague Convention does not apply because the defendant is a resident of a foreign nation, rather it applies whenever there is occasion to transmit a judicial or extrajudicial document for service abroad. Hague Convention. 20 U.S.T. at 362;
Volkswagenwerk,
. Indeed, the Hague Convention’s very name — Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters — suggests as much.
. Notably, the portion of
Chowaniec
that is instructive is the ultimate determination that “it would be improper to dismiss the complaint as to [the defendant] simply because [the plaintiff] failed to properly effect service. We will give [the plaintiff! a 'reasonable opportunity to attempt to effect service on the defendant in a manner complying with the Hague Convention.’ ”
Chowaniec,
. The 120-day time limit provided in Rule 4(m) does not apply to service in a foreign country pursuant to Rule 4(f). Thus, the Court expressly determines that the imposition of the July 27, 1999 deadline provides the plaintiff with a "reasonable opportunity to attempt to effect service on the defendant in a manner complying with the Hague Convention.’’
Cf. Vorhees v. Fischer & Krecke,