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Lewis v. Dimeo Constr. Co.

United States District Court, D. Massachusetts

August 11, 2014

JAMES LEWIS, NICOLE LEWIS, Plaintiffs,
v.
DIMEO CONSTRUCTION CO., HILTI, INC., HILTI CORPORATION, Defendants

For James Lewis, Nicole Lewis, Plaintiffs: Alan L. Cantor, James A. Swartz, LEAD ATTORNEYS, Swartz & Swartz, Boston, MA.

For Dimeo Construction Company, Defendant, Cross Defendant, Cross Claimant: David M. O'Connor, O'Connor & Associates, LLC, Boston, MA.

For Hilti, Inc., Hilti Corporation, Defendants, Cross Defendants: Jeanne O. McHugh, LEAD ATTORNEY, Engelberg & Bratcher, Boston, MA.

For Hilti, Inc., Cross Claimant: Jeanne O. McHugh, LEAD ATTORNEY, Engelberg & Bratcher, Boston, MA.

OPINION

Page 109

REPORT AND RECOMMENDATION ON PLAINTIFFS' MOTION FOR ISSUANCE OF ORDER NUNC PRO TUNC APPROVING SERVICE ON HILTI CORPORATION BY REGISTERED MAIL, OR IN THE ALTERNATIVE, TO ALLOW PLAINTIFFS TO RESERVE HILTI CORPORATION BY REGISTERED MAIL (#9)

ROBERT B. COLLINGS, United States Magistrate Judge.

The present question in this litigation is whether service of process upon defendant Hilti Corporation (" Hilti" )[1], domiciled in the principality of Liechtenstein, was proper, and if not, whether service can be made at this time and if so, by what means. The facts are rather straightforward; the law to be applied, especially as concerns the law of Liechtenstein (to the extent it is relevant), is rather more complex.

The facts are that Hilti is named in Counts III and IV of the Complaint (#4) alleging negligence in connection with the manufacture and design of a powder actuated tool (Count III) and further alleging loss of consortium (Count IV). James Lewis avers that he was injured while using the tool when it misfired and fired a piston into his hand; his wife, Nicole Lewis, seeks recovery for loss of consortium.

Plaintiffs served Hilti in Liechtenstein by registered mail. A return receipt was returned to the plaintiffs' attorney in the normal course of post office business. See #9, Exh. A at p. 4. The return receipt bears a stamp with the address of Hilti on it as well as a signature of a representative of Hilti (which is illegible). Although the box next to the statement " The article mentioned above was duly delivered" was not checked and the date of delivery was not inserted, the Court finds that the summons and complaint were received by Hilti on April 1, 2014. I base this finding on the fact that the registered mail was delivered to the United States Post Office on or about March 27, 2014, the stamp on the return receipt is marked " -1.-4.14-19" which means " April 1, 2014," Hilti has never denied that the materials were delivered to it [2], and on April 22, 2014, an attorney entered her appearance on behalf of Hilti and entered into a stipulation to extend time to answer. See #8.

Page 110

Now as to the law, the matter is first governed by the Federal Rules of Civil Procedure, specifically Rule 4(f), which deals with service on an individual in a foreign country, reading as follows:

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served at a place not within any judicial district of the United States:
(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 ...

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