10Feb
By: Tom On: February 10, 2020 In: International Service of Process Comments: 0
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For most people, “home” refers to where they are domiciled. But in a world of multinational corporations and high-net-earners with houses on several continents, it can be difficult to determine where exactly a person is officially domiciled. This becomes an important question with respect to service of process.

This issue was examined in Windecker v. Wei.[1]  In this case, which involved a breach of contract, the defendant was served by a process server who left “a copy of the petition and summons with [the Defendant’s] wife, at a home in North Carolina owned by [the Defendant] and his wife.”

The Defendant challenged service by asserting that because he was a citizen of the People’s Republic of China, proper service must be pursuant to the Hague Service Convention at his residence in China. He attested that service at his North Carolina home was improper because it was not his “dwelling or usual place of abode.”

The Relevant Facts: The Defendant’s Family Resides in NC

The court began its discussion by reviewing the relevant facts:[2]

“In a declaration attached to the motion, the Defendant testifies—somewhat vaguely—that he is “domiciled” in Chengdu, China where he “own(s) a home and conducts business.” He further states that his wife “has lived in North Carolina periodically with my daughter in a house there.” He makes no mention that the “house there” is owned by the Defendant and his wife.

“The Plaintiff contends in his declaration that the Defendant’s wife, daughter and mother-in-law reside in the home. He states that when the Defendant and his wife first visited with him (in Texas), the Plaintiff and his wife discussed housing and school options with the Defendants, as the Defendants’ stated their intention was for the Defendant’s wife and daughter to relocate to the US so their daughter could attend school there. And when he visited the Defendant in North Carolina, they met at the Defendant’s house, and at that time the Defendant’s wife, daughter and mother-in-law were living there. And though the Defendants subsequently sold that house, they simultaneously purchased a different home in North Carolina.

“The property records in Mecklenburg County reflect that the owners of the house are the Defendant and his wife, and the grantee section on the warranty deed was manually altered to add the Defendant as a grantee, when that section originally only listed his wife, suggesting that the parties plainly wanted it to be clear on the deed that the Defendant was an owner of the house.” [Emphasis in the original]

The Relevant Law: Rule 4

The court next addressed the relevant law:[3]

“The Defendant is incorrect that the Plaintiff was not permitted to serve him pursuant to Rule 4(e) simply because the Defendant is a citizen of China, and his permanent residence is there. The plain text of Rule 4 says otherwise. Rule 4 is not focused on the citizenship of the person being served, but rather on where the service takes place. Thus, Rule 4(e) pertains to “serving an individual within a judicial district of the United States,” while 4(f) addresses “serving an individual in a foreign country.” FED. R. CIV. P. 4(e) & (f) [Emphasis in the original]…

“The question is therefore not what country the Defendant is a citizen of, but whether the North Carolina house where the summons was left can be considered the Defendant’s “dwelling or usual place of abode” for Rule 4’s purposes…

“The Fifth Circuit has noted that “no hard and fast rule can be fashioned to determine what is or what is not a party’s `dwelling house or usual place of abode.'” Further, the Circuit has noted that the “construction of [Rule 4] varies according to whether the defendant received notice of the suit. [Rule 4] should be broadly construed where the defendant, as in this case, received notice of the suit.” The Defendant undoubtedly received actual notice of the suit more than a year ago when the suit was served on the corporation he is the sole owner of and its wholly-owned subsidiary, both of which were served through The Defendant’s wife—the registered agent for both companies—in North Carolina. Further, The Defendant is represented by the same counsel as [the other defendants].

“Given this, the Court is to construe Rule 4 broadly in determining whether the North Carolina home is The Defendant’s dwelling or usual place of abode. Doing so, the Court finds that The Plaintiff has carried his burden on this issue, and The Defendant has failed to rebut The Plaintiff’s evidence. The Defendant’s declaration vaguely stated that he was “domiciled” in China and owned a house there. The Plaintiff’s responsive evidence shows that The Defendant’s family has resided primarily in North Carolina, and the couple recently purchased a new $1 million home there. The Defendant offered nothing in response to this in his reply. This does not amount to the “strong and convincing evidence” required to overcome The Plaintiff’s demonstration. The Defendant’s Rule 12(b)(5) motion challenging the service of process should be denied.”

The Key Takeaway: Rule 4 is to be Construed Broadly

This opinion makes it clear that where someone’s usual abode or residence is should be construed broadly.

Regardless of what someone stipulates as their legal domicile and regardless of citizenship, if they own a house in another location where their family resides and where their children attend school, then, under the law, that house is considered home.

How LLS Can Help

Whether you need to service process via the Hague Convention or by other means, the professionals at LLS can help. With more than 35 years of experience, we are the premier source for litigation support. Contact us today to learn how we can put our experience to work for you.

Call us at 1-800-788-0450 or simply fill out our free quote form.

Notes
[1] No. 1:18-CV-00898-LY, United States District Court, W.D. Texas, Austin Division, 16 January 2020.
[2] Citations omitted and “Plaintiff” and “Defendant” have been used throughout rather than the parties’ names.
[3] Citations omitted.

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