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Thach v. Tiger Corp.

June 23, 2010

OANH THACH, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DECEASED PEARL WANG; KIM THACH, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DECEASED JIMMY HUA; KIM THACH, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DECEASED MICHELLE HUYNH, PLAINTIFFS -- APPELLANTS,
v.
TIGER CORPORATION DEFENDANT -- APPELLEE, TIGER AMERICA CORPORATION, WHICH WILL DO BUSINESS IN CALIFORNIA AS TIGER U.S.A. CORPORATION, DOING BUSINESS AS TIGER U.S.A. CORPORATION; JAPAN TIGER CORPORATION OF U.S.A., DEFENDANTS.



Appeal from the United States District Court for the District of South Dakota.

The opinion of the court was delivered by: Murphy, Circuit Judge.

Submitted: May 11, 2010

Before RILEY, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.

Oanh and Kim Thach brought this negligence, products liability, and breach of warranty action against Tiger Corporation, the Japanese manufacturer of a rice cooker which allegedly caused a fire at their home. The district court*fn1 granted Tiger judgment on the pleadings, finding that the Thachs had failed to serve it within South Dakota's three year statute of limitations. The Thachs appeal, contending that the limitations period was tolled when they delivered the summons and complaint to Japan's central authority for processing under the Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (the Hague Convention). We affirm.

I.

On December 11, 2004 a JCC rice cooker manufactured by Tiger allegedly caused a fire and damage at the Thachs' Sioux Falls home, seriously injuring Oanh and causing the deaths of Pearl Wang, Jimmy Hua, and Michelle Huyn. Almost three years later, on November 6, 2007 the Thachs filed this action against Tiger and its U.S. distributors, Japan Tiger Corporation of U.S.A. (Tiger U.S.A.) and Tiger America Corporation (Tiger America).

South Dakota provides a three year statute of limitations for product liability actions so the Thachs were required to serve each defendant with a summons and complaint by December 11, 2007. See S.D. Codified Laws §§ 15-2-12.2, 15-2-30. They served Tiger U.S.A. (identified on Tiger's "Global Site" web site as its "Representative Office in [the] U.S.A.") on November 15, 2007 and Tiger America on November 26. Tiger U.S.A. forwarded the summons and complaint to Tiger, and on December 3 the two filed a joint answer contending that Tiger had not been properly served.

The Thachs hired a private process server, APS International, Ltd., to serve Tiger in Japan in accordance with the Hague Convention:

The Hague Service Convention is a multilateral treaty... intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions... receive actual and timely notice of suit, and to facilitate proof of service abroad.... The primary innovation of the Convention is that it requires each state to establish a central authority to receive requests for service of documents from other countries. 20 U.S.T. 362, T.I.A.S. 6638, Art. 2. Once a central authority receives a request in the proper form, it must serve the documents by a method prescribed by the internal law of the receiving state or by a method designated by the requester and compatible with that law. Art. 5.

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698--99 (1988) (some citations omitted).

Japan is a signatory to the Hague Convention, and the Ministry of Foreign Affairs (the Ministry) is its designated central authority. APS delivered the Thachs' summons and complaint with a proper request for service to the Ministry, which stamped it as received on "19.12.07." The summons and complaint were then served on Tiger by mail at its Osaka, Japan headquarters on January 24, 2008, over a month after the South Dakota limitations period had expired on December 11, 2007.*fn2

Tiger moved for judgment on the pleadings under Fed. R. Civ. P. 12(c), asserting that the statute of limitations had run before it was served. In its reply memorandum in support of the motion, Tiger represented that the Ministry date stamp "19.12.07" signified December 19, 2007, showing its receipt of the request for service eight days after the limitations period expired. On appeal the Thachs contend that under the Japanese calendar "19.12.07" is actually equivalent to December 7, 2007, so delivery to the Ministry was timely. They claim that their inability to file a sur reply precluded them from making that argument to the district court.

The district court granted Tiger judgment on the pleadings after concluding that the Thachs had not complied with the statute of limitations. It also granted summary judgment to Tiger America and Tiger U.S.A. on the ground that they could not have distributed the Thachs' rice cooker because they were not yet in existence at the time the Thachs purchased it. The Thachs appeal the grant of judgment on the pleadings to Tiger and request we take judicial notice that:

(1) The traditional Japanese calendar is based on the reign of its emperors and is used for official governmental documents. (2) The year 2007 AD was the nineteenth year of the Heisei Era, the reign of Emperor Akihito. (3) Therefore, an official Japanese government document stamped with ...


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