## Facts

- Charles A. Rhodes, Jr. and Judy Valentine Rhodes filed a Louisiana products-liability action alleging injury from a firearm malfunction and discharge.
- The suit was brought under the Louisiana Products Liability Act in Louisiana state court and later removed to federal court based on diversity jurisdiction.
- One defendant, J.P. Sauer & Sohn, Inc., was a German entity with its principal place of business in Germany.
- Plaintiffs attempted to serve the German defendant by sending the state-court petition to Germany via Federal Express without German translations.
- The German defendant moved to dismiss for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5) or, alternatively, to quash service under Rule 4(f)(1).

## Issues

1. Whether sending process to a German defendant by Federal Express, without German translations and without using Hague Convention procedures, constitutes proper service under Rule 4(f)(1).
2. If service was improper, whether the proper remedy is dismissal under Rule 12(b)(5) or quashing service with an opportunity to perfect service.

## Decision

- The court held plaintiffs’ Federal Express service did not comply with Rule 4(f)(1) because the Hague Service Convention governed service in Germany.
- The court granted the motion to quash service.
- The court denied the motion to dismiss and allowed plaintiffs an opportunity to effect proper service consistent with Rule 4 and the Hague Convention.

## Legal Principles

- When the Hague Service Convention applies (because both countries are signatories and service must be transmitted abroad), it supplies the controlling methods for service under Rule 4(f)(1).
- Attempted service abroad that bypasses Hague Convention mechanisms and applicable requirements (including translation and central-authority procedures recognized by the destination state) is defective for purposes of Rule 12(b)(5).
- A Rule 12(b)(5) challenge does not require dismissal; where proper service appears feasible and the defendant has notice, courts may quash defective service and permit re-service rather than dismissing the action.

## Conclusion

Because service on the German defendant was attempted by private courier without complying with Hague Convention procedures, the court quashed the service but refused to dismiss the claims, instead permitting plaintiffs to re-serve the defendant properly under Rule 4(f)(1) and the Hague Convention.


Rhodes v. J.P. Sauer & Sohn, Inc., 98 F. Supp. 2d 746 (W.D. La. 2000)