EOI Corp. v. Medical Marketing Ltd.

172 F.R.D. 133, 1997 U.S. Dist. LEXIS 10668, 1997 WL 200452
CourtDistrict Court, D. New Jersey
DecidedFebruary 27, 1997
DocketCivil Action No. 96-4961(AET)
StatusPublished
Cited by15 cases

This text of 172 F.R.D. 133 (EOI Corp. v. Medical Marketing Ltd.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
EOI Corp. v. Medical Marketing Ltd., 172 F.R.D. 133, 1997 U.S. Dist. LEXIS 10668, 1997 WL 200452 (D.N.J. 1997).

Opinion

ORDER

WOLFSON, United States Magistrate Judge.

This matter having been opened to the Court by Charles J. Vinicombe of Drinker, Biddle, & Reath, on behalf of defendant, Medical Marketing International Limited (“MMI”), for an Order quashing service of process, and the Court having considered the moving, opposition, and reply papers, and the Court further having entered a Memorandum on this date setting forth the Court’s decision in this matter, which is being considered pursuant to Fed.R.Civ.P. 78, and for good cause shown,

IT IS on this 27th day of February, 1997,

ORDERED that defendant MMI’s motion to quash plaintiffs service of process is denied; and it is further

ORDERED that defendant MMI shall file its Answer within thirty (30) days from the date of this Order.

MEMORANDUM

Presently before the Court is the motion by defendant, Medical Marketing International Limited (“MMI”), seeking an Order quashing service of process of the Complaint for failing to comply with the mandates of the Hague Convention. The court has considered the moving, opposition, and reply papers, and decides this matter pursuant to Fed.R.Civ.P. 78. For the following reasons, defendant’s motion to quash service of process is denied.

Background

The present action arises out of a contract dispute between plaintiff EOI Corp. (“EOI”), a corporation with its primary offices in New Jersey, and MMI, a corporation with its principal place of business in England, United Kingdom.1 EOI filed its Complaint against MMI, Sohrab Darougar, and I.O. International Limited, in the District Court of New Jersey on October 2, 1996. Thereafter, on October 9, 1996, the Clerk of the Court issued a summons, pursuant to Fed.R.Civ.P. 4(b), for defendants MMI and Sohrab Darougar. EOI then sent a copy of the Summons, Complaint, and Acknowledgment of Service to MMI via DHL, a commercial package delivery service, and by regular mail. EOI Brief at 2. On October 14, 1996, DHL served the papers at Highfields House, 2 High Street, Little Shelford, Cambridge, England, which is the private residence of David Best, MMI’s Managing Director. EOI Brief at 2 and Corresponding Exhibit A; Certification of Margaret Smart Best (“M. Best Certification”) at 2. DHL left the papers with Marga[135]*135ret Smart Best2, David Best’s wife, who accepted and signed for the package. M. Best Certification at 1-2.

MMI brings the present motion to quash EOI’s service of process by mail, alleging that EOI’s choice of service by DHL delivery violated both Fed. R. Civ. P. 4(h)(2) and Hague Convention Article 10(a). Relying upon Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir.1989), and its progeny, MMI submits that the plain language of the Hague Convention distinguishes between “service” by mail and the “sending” of subsequent judicial documents by postal means; the former, which was utilized here, is not authorized under Article 10(a) of the Hague Convention. MMI Brief at 4-10. In the alternative, MMI suggests that in the event that this Court finds that Article 10(a) does permit service by post, that Article should be read in conjunction with Fed.R.Civ.P. 4(f)(2), “which provides that service may be made by ‘any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served.’ ” MMI Brief at 10-11. Having failed to effectuate service through the Clerk of the Court, as required by Fed.R.Civ.P. 4(f)(2)(C)(ii), MMI argues that EOI’s attempted service was invalid. Id.

Following the dividing line already drawn by many courts and commentators, EOI disagrees sharply with MMI’s interpretation of Article 10(a) of the Hague Convention, insisting that, in light of Ackermann v. Levine, 788 F.2d 830 (2d Cir.1986), and its progeny, this provision does contemplate and permit service of process by postal means. EOI Brief at 3-11. Consequently, EOI urges this Court to find that it properly served MMI in accordance with Article 10(a) of the Hague Convention.

Discussion

Pursuant to Federal Rule of Civil Procedure 4(h)(2), service3 upon a foreign corporation, from which a waiver of service has not been obtained and filed, shall be effected by any manner prescribed for service upon individuals in a foreign country detailed in Federal Rule of Civil Procedure 4(f), except that personal delivery is not permitted. Rule 4(f) offers several options for serving a foreign litigant, including “by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents” Fed.R.Civ.PA(f).4 Hence, courts have concluded that “the Convention supplements— and is manifestly not limited by — Rule 4.” Ackermann v. Levine, 788 F.2d at 840.

1. The Hague Convention and the Article 10(a) Controversy

There is no dispute that the Hague Convention rules regarding service of process are applicable here. The Hague Convention, adopted in 1965, had as its purpose the creation of an “appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.” Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15,1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163 (hereinafter “Hague Convention”); the full text of the Hague Convention has also been reprinted in the United States Code Service (U.S.C.S.) on International Agreements at 265-310. The approximately thirty-two signatory countries, including the United States and the United Kingdom (the countries implicated in the instant dispute), are obligated to abide by the Convention rules. As a ratified treaty, the Convention is the supreme law of the land, and maintains controlling effect. See U.S. Const. Art. VI, cl. 2; Ackermann v. Levine, 788 F.2d at 838; American Trust Co. v. Smyth, 247 F.2d 149, 152 (9th Cir.1957); See also R. Griggs Group [136]*136Limited v. Filanto Spa, 920 F.Supp. 1100, 1102 (D.Nev.1996) (where the Hague Convention applies, its provisions are mandatory, and failure to comply voids the attempted service).

The Hague Convention authorizes several different mechanisms for effectuating service of process. The primary vehicle, established in Articles 2 through 7, requires each participating country to set up a Central Authority to monitor and ensure proper service.5 However, the Convention does not limit litigants to serve process exclusively through the Central Authority. Several other articles which establish equally permissible and valid alternative measures for service in a foreign country, include: Articles 8 and 9, which allow service through diplomatic or consular agents;6

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Cite This Page — Counsel Stack

Bluebook (online)
172 F.R.D. 133, 1997 U.S. Dist. LEXIS 10668, 1997 WL 200452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eoi-corp-v-medical-marketing-ltd-njd-1997.