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Moore v. Lowe's Companies, Inc.

United States District Court, Sixth Circuit

May 6, 2013

DAVID ALEXANDER MOORE, Plaintiff
v.
LOWE'S COMPANIES, INC., LOWE'S HOME CENTERS, INC., L.G. SOURCING, INC., REXON INDUSTRIAL CORP. and POWER TOOL SPECIALISTS, INC., Defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH H. McKINLEY, Jr., Chief District Judge.

This matter is before the Court on Defendant Rexon's Motion to Quash Summons and/or Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12 [DN 12]. Fully briefed, this matter is ripe for decision. For the following reasons, Defendant Rexon's motion is DENIED.

I. BACKGROUND

Plaintiff, David Alexander Moore, alleges that he was injured on January 22, 2012 while he was using a Task Force brand table saw, Model No. BT2500W, Item No. 229647, sold by Defendant Lowe's Home Centers and manufactured by Defendant Rexon. Plaintiff asserts that his injury would have been avoided had Defendants incorporated "available safety technology" into the saw. (Compl. [DN 1] §§ 10, 16.) Plaintiff alleges that Defendant Rexon "designed, manufactured, sold, distributed, promoted, and placed into the stream of commerce in Kentucky numerous power tools, " including the particular Task Force brand table saw that is the subject of this action. (Id. §§ 7, 10.)

According to Plaintiff's complaint, Rexon "is a foreign corporation maintaining its principal place of business in Taoyuan, Taiwan, " and it can be served "through its U.S. subsidiary, Power Tool Specialists, Inc." (Id. § 5.) Plaintiff lists Power Tool Specialists, Inc. ("PTS") as a Massachusetts corporation with its principal place of business in South Carolina. (Id. § 6.) After the complaint was filed, Plaintiff attempted service upon Rexon through Kentucky's Office of the Secretary of State. On January 16, 2013, the Secretary of State sent Plaintiff's summons and complaint for Rexon, via certified mail, to the address identified as PTS's principal place of business. (See Proof of Serv. [DN 12-1].) Rexon has now moved to quash the summons and/or dismiss Plaintiff's complaint for insufficient process or insufficient service of process under Federal Rule of Civil Procedure 12.[1]

II. DISCUSSION

Rules 12(b)(4) and 12(b)(5) address departures from the proper procedures for serving the summons and the complaint, and the contents of the former. See Fed.R.Civ.P. 12(b)(4), 12(b)(5). A Rule 12(b)(4) motion "concerns the form of process rather than the manner or method of service... [and] is proper only to challenge non-compliance with the provisions of Rule 4." Ericson v. Pollack , 110 F.Supp.2d 582, 584 (E.D. Mich. 2000) (internal citations omitted). By contrast, a Rule 12(b)(5) motion challenges the mode of serving the summons and complaint. Nafziger v. McDermott Inter'l, Inc. , 467 F.3d 514, 521 (6th Cir. 2006). Pursuant to these Rules, Defendant Rexon has moved to dismiss Plaintiff's complaint for deficiencies in both the process and the manner of service.

Rexon's deficiency in process allegation under Rule 12(b)(4) stems from the fact that in the summons, Plaintiff identified Rexon's address as 684 Huey Road, Rock Hill, S.C. 29730. According to Rexon, this corporate address is actually PTS's principal place of business, and Plaintiff's use of the improper address renders process insufficient. However, Rexon fails to point to any part of Rule 4, or any case, which states that using an improper address renders the form of process insufficient. Thus, the Court finds that Plaintiff complied with Rule 12(b)(4). The question then becomes whether the manner of service was sufficient under Rule 12(b)(5). To answer this question, the Court must turn its attention to Rule 4(h).

Rule 4(h) prescribes the manner in which service is to be effectuated on corporate defendants. The Rule is divided into two categories: the first of which is applicable when service is made within a U.S. judicial district and the second of which is applicable when service is made outside of a U.S. judicial district. See Fed.R.Civ.P. 4(h). In this case, Rexon broadly asserts that the Court must look to the second category and effectuate service "in any manner prescribed by Rule 4(f) for serving an individual...." Fed.R.Civ.P. 4(h)(2). Rule 4(f) provides that a foreign corporation may be served:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or ...

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