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Trump Taj Mahal Associates v. Hotel Services

November 13, 1998

TRUMP TAJ MAHAL ASSOCIATES,
PLAINTIFF,
V. HOTEL SERVICES, INC., F/K/A ROBOBAR, INC. ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Robert B. Kugler United States Magistrate Judge

CAMDEN VICINAGE

HONORABLE JOSEPH H. RODRIGUEZ

OPINION

KUGLER, United States Magistrate Judge

Presently before the Court is the motion by Brian C. Darreff, Esquire, attorney for Defendant Roboserve (Canada) Ltd. ("Roboserve"), for an order quashing service of process on the grounds of Plaintiff's failure to comply with the procedures set forth in the Hague Convention. For the reasons discussed below, Defendant's motion is DENIED.

Background

On July 13, 1998 Plaintiff Trump Taj Mahal Associates (the "Taj") filed an amended complaint naming as defendants Roboserve, Hotel Services, Ltd., f/k/a Robobar, Ltd. and Citylink Group, Ltd. See Exhibit B to Affidavit of Rona Z. Kaplan, Esquire, in Opposition to Defendant Roboserve (Canada) Ltd.'s Motion to Quash Service and in Support of Plaintiff's Cross Motion for Sanctions ("Kaplan Aff."). *fn1 Because this motion only challenges service on Roboserve, the discussion will be limited to that Defendant.

The Taj attempted service on Roboserve in several different ways in two different countries. First, Plaintiff mailed the summons, amended complaint and United States Marshall's Form 94, Request for Service Abroad of Judicial or Extra Judicial Documents ("USM-94") to Roboserve via international certified mail. See Kaplan Aff., Exhs. C and D. Second, the Taj sent the summons, amended complaint and USM-94 to the Central Authorities of Canada and the United Kingdom pursuant to Articles 1-6 of the Hague Convention On The Service Abroad Of Judicial And Extra-judicial Documents In Civil Or Commercial Matters, 15 November 1965, 20 U.S.T. 361-73 (the "Hague Convention"). Finally, the Taj caused the summons, amended complaint and USM-94 to be personally served on William Fattal, an officer of Roboserve identified in Roboserve's answers to interrogatories in a related action. See Kaplan Aff., Exhs. E, I and K.

Roboserve is a Canadian Corporation with its principal place of business in Ontario, Canada. See Roboserve's Brief in Support of Motion to Quash Service at 2 ("Roboserve Brief"); Kaplan Aff., Exh. E. Roboserve argues that because both Canada and the United States are signatory countries to the Hague Convention, Plaintiff must comply with the treaty's procedures to execute valid service. See Roboserve Brief at 2.

Roboserve argues that Plaintiff's service on it was invalid for two reasons. First, Plaintiff failed to send process to the appropriate authority in Canada designated by Canada as the "Central Authority" under the Hague Convention. See Roboserve Brief at 3. Second, Roboserve claims that Article 10(a) of the Hague Convention, which provides for "send[ing]" judicial documents by mail, does not allow "service" by mail. See id. Defendant argues, without citation to any authority, that "[t]he majority line of cases have consistently held that paragraph [sic] 10(a) provides only for the service of subsequent papers after service of process has been effectuated by proper means." See id. at 4-5 (emphasis supplied). In essence, Defendant is arguing that service of process must be accomplished through official channels as set forth in Articles 1-9 of the Hague Convention, and that only subsequent litigation papers, such as motions and discovery requests, may be sent through the mail pursuant to Article 10(a).

I find Defendant's argument unpersuasive and hold that while there is a split in authority among the circuit courts of appeal, and indeed a split among the district courts within this circuit, service of process on a Canadian corporation is valid under the Hague Convention when executed by certified international mail.

Discussion

Service of process is governed by Rule 4 of the Federal Rules of Civil Procedure. The Rule provides, in pertinent part:

(h) Service Upon Corporations and Associations. Unless otherwise provided by federal law, service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under a common name, and from which a waiver of service has not been obtained and filed, shall be effected: . . . in a place not within any judicial district of the United States in any manner prescribed for individuals by subdivision (f) except personal delivery as provided in paragraph (2)(C)(i) thereof. Fed. R. Civ. P. 4(h)(2).

(f) Service Upon Individuals in a Foreign Country. Unless otherwise provided by federal law, service upon an individual . . . may be effected in a place not within any judicial district of the United States: (1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention ...


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