Frederick v. Hydro-Aluminum S.A.

153 F.R.D. 120, 1994 U.S. Dist. LEXIS 1734, 1994 WL 51640
CourtDistrict Court, E.D. Michigan
DecidedFebruary 9, 1994
DocketNo. 93-CV-70638-DT
StatusPublished
Cited by7 cases

This text of 153 F.R.D. 120 (Frederick v. Hydro-Aluminum S.A.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frederick v. Hydro-Aluminum S.A., 153 F.R.D. 120, 1994 U.S. Dist. LEXIS 1734, 1994 WL 51640 (E.D. Mich. 1994).

Opinion

ORDER

JULIAN ABELE COOK, Jr., Chief Judge.

On September 14, 1993, one of the Defendants in the above-entitled cause, Eberhard Schmidt-Offhaus, filed a Motion to Dismiss against the Plaintiffs, John Frederick and Frederick Company, contending that the service of process upon him was invalid. On October 15, 1993, Schmidt-Offhaus and another Defendant, Hydro-Aluminum, s.a., filed a Motion to Dismiss, in which they jointly allege that this Court does not have [122]*122personal jurisdiction over either of them.1 For the reasons that have been set forth below, this Court will (1) deny Schmidt-Off-haus’ Motion to Dismiss and (2) deny in part and grant in part the Defendants’ Motion to Dismiss.

I

On November 8,1988, Frederick Company entered into a Sales Representation Agreement (Agreement) with Bohn Aluminum and Brass Division of Wickes Manufacturing Company (Bohn Aluminum-Wickes). In August 1990, Hydro-Aluminum s.a. of Europe (Hydro-Aluminum) purchased the manufacturing facilities of Bohn Aluminum-Wickes in Adrian and Holland, Michigan. These manufacturing facilities were subsequently transferred to Hydro-Aluminum Bohn (HAB), a company that had been established by Hydro-Aluminum. As a result, HAB became the assignee of the Agreement between Frederick Company and Bohn Aluminum-Wickes and assumed all of its legal and fiscal responsibilities.

Thereafter, HAB encountered some production problems in meeting its obligations to one of its customers, TRW, with whom it had contracted to manufacture automotive air bags. In an effort that was ostensibly designed to permit HAB to continue the manufacture of its products for TRW, Frederick Company made arrangements with Pohlman, Inc. (Pohlman) to perform all of the necessary machining operations. As compensation for its services, Frederick Company was to receive a two and one-half percent (2]/¿%) sales commission from Pohlman on the shipment of all of its aluminum products, processes, and assemblies to HAB or TRW.

However, the Plaintiffs did not receive the agreed upon compensation. They claim that it was improperly withheld because (a) Frederick Company was induced to decline its Pohlman commissions by Theodore DiGui-seppe, an agent of Hydro-Aluminum, and (b) HAB developed a scheme in which the assembly and processing of the aluminum products was wrongfully diverted to Pohlman who, in turn, assembled the final product for TRW.

On February 12,1993, the Plaintiffs filed a lawsuit in this Court against the Defendants, alleging, among other things, a breach of contract and the tortious interference with an existing contract. Four days later, they initiated legal proceedings in the Oakland County Circuit Court of Michigan against HAB, Richard Boehman and Theodore DiGuiseppe. However, this state court action was dismissed because of a clause in the Agreement which required the parties to submit their differences to an arbitrator.

The motions by Hydro-Aluminum and Schmidt-Offhaus are now before the Court for resolution.

II

In his motion to dismiss, Schmidt-Offhaus claims that the service of process upon him is legally defective because the summons and complaint were not served in a manner as required by the Hague Convention2. He maintains that (1) the certification on the Proof of Service fails to demonstrate compliance by the Plaintiffs with the requirements [123]*123of the Hague Convention, and (2) the appearance of the word, “personally,” on the certificate is inconsistent with his insistence that the papers were delivered to a receptionist at his place of business instead of directly to him. As an alternative form of relief, Schmidt-Offhaus seeks a dismissal of the Plaintiffs’ claims because the summons and the complaint were not served upon him within the one hundred twenty (120) day time limit, as required by Fed.R.Civ.P. 4(j).

The Plaintiffs challenge Schmidt-Offhaus’ argument. It is their position that (1) he was personally served3, and (2) the time restriction in Fed.R.Civ.P. 4(j) is inapplicable to service upon an individual in a foreign country.

Fed.R.Civ.P. 12(b)(5) permits a party to raise the defense of insufficiency of service of process in a motion to dismiss. When the validity of the service of process is contested, the plaintiff bears the burden of proving that proper service was effected. Aetna Business Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir.1981); Jackson v. United States, 138 F.R.D. 83 (S.D.Tex.1991). The Sixth Circuit Court of Appeals (Sixth Circuit) has held that “if the first service of process is ineffective, a motion to dismiss should not be granted, but the case should be retained for proper service later.” Stern v. Beer, 200 F.2d 794, 795 (6th Cir.1952); Maichok v. Bertha-Consumers Co., 25 F.2d 257 (6th Cir. 1928); see also Vorhees v. Fischer & Krecke, 697 F.2d 574, 575 (4th Cir.1983) (citations omitted) (plaintiff should be given reasonable opportunity to effect valid service on defendant in compliance with Hague Convention); Jim Fox Enterprises, Inc. v. Air France, 664 F.2d 63, 65 (5th Cir.1981). Accordingly, “[w]hen the gravamen of defendant’s motion is insufficiency of process, the motion must be treated as one to quash service, with leave to plaintiffs to attempt valid service.” Daley v. ALIA, 105 F.R.D. 87, 89 (E.D.N.Y.1985).

Schmidt-Offhaus argues that the laws of Germany require personal service upon the individual who has been named in the summons and complaint. However, the Plaintiffs insist that personal service was effectuated upon Schmidt-Offhaus, as demonstrated by the certificate which reads, in part, that “[t]he documents referred to in the request have been delivered to: ... Mr. Eberhard Schmidt-Offhaus (personally).” (Plaintiffs’ Response, Exhibit 1 at English translation of Certificate.) In juxtaposition to the Certificate by the judicial official is Schmidt-Offhaus’ affidavit in which he denies personal service.

This Court, having received additional documentation with regard to this issue4, is convinced that the movant was properly served. Under German law, service may be accomplished personally or by service upon an individual at his place of employment. German Rules of Civil Procedure §§ 180, 183. The latter provision “applies only to service to individuals in their role as ‘a business person,’ i.e. in the capacity as a representative of the business.” (Defendants’ Reply to Plaintiffs’ Supplemental Memorandum, December 22, 1993 at unnumbered page 3; see also Defendants’ Supplemental Memorandum, January 3, 1994 at Exhibits A, B.)

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153 F.R.D. 120, 1994 U.S. Dist. LEXIS 1734, 1994 WL 51640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frederick-v-hydro-aluminum-sa-mied-1994.