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Dimensional Communications, Inc. v. Oz Optics Limited

September 9, 2002

DIMENSIONAL COMMUNICATIONS, INC., PLAINTIFF,
v.
OZ OPTICS LIMITED, DEFENDANT.



The opinion of the court was delivered by: Bassler, District Judge

FOR PUBLICATION

OPINION

Defendant OZ Optics Limited moves pursuant to Rule 12(b)(5) to dismiss the Complaint or, alternatively, to quash service of process on the grounds that such service was insufficient under the Fed. R. Civ. P. 4(h). This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (diversity). For the following reasons, Defendant's motion is denied.

I. BACKGROUND

OZ Optics Limited ("OZ Optics Canada") is a Canadian corporation having its principal place of business in Ontario, Canada. It has no offices in the State of New Jersey, is not registered to do business in the State of New Jersey, nor does it have a registered agent in the State of New Jersey. Additionally, OZ Optics Canada maintains no property or employees in the State of New Jersey.

OZ Optics Inc. ("OZ Optics New Jersey") is a wholly owned subsidiary of OZ Optics Canada. It is a Delaware corporation and is registered to do business in the State of New Jersey, where it has designated the Corporation Trust Company as its registered agent. It is alleged that OZ Optics New Jersey operates as an independent entity, filing its own tax returns, maintaining separate books and records, and having its own bank accounts.

The Complaint alleges that OZ Optics Canada breached its contract with Dimensional Communications Inc. ("DCI"). The Complaint is addressed to OZ Optics Canada at its Ontario address and names OZ Optics Canada as the only defendant. There are no allegations in the Complaint pertaining to OZ Optics New Jersey. It appears from the face of the Complaint and the attachments thereto that all of the transactions at issue in this case were between OZ Optics Canada and DCI.

Shortly after filing the Complaint on October 22, 2001, DCI sent to OZ Optics, at its Ontario address, a Notice of Lawsuit and request for Waiver of Service of Process. OZ Optics Canada refused to sign the waiver. DCI then undertook a variety of methods to effectuate service on OZ Optics Canada.

On or about January 10, 2002, DCI purported to effect personal service on OZ Optics Canada by personal delivery of a copy of the Summons and Complaint to OZ Optics New Jersey's registered agent, the Corporation Trust Company, in West Trenton, New Jersey. The Corporation Trust Company forwarded the Complaint to OZ Optics New Jersey, which in turn forwarded it to OZ Optics Canada.

On or about January 11, 2002, DCI purported to again effect personal service on OZ Optics Canada by having a private process server, Wilfred Schwartz, personally deliver a copy of the Summons and Complaint to OZ Optics Canada at its Ontario address. Wilfred Schwartz claims that he has been in the business of serving judicial documents in Canada for ten years, and is competent to personally serve judicial process in Ontario. See Schwartz Decl., ¶¶ 1-2. The delivery was accepted by Mr. Jim Burke, the Vice President of Operations of OZ Optics Canada. Id., at Ex. A.

OZ Optics Canada claims that the foregoing methods were insufficient to properly effectuate service of process on OZ Optics Canada. It, therefore, moves to dismiss the Complaint or, alternatively, to quash service of process.

II. APPLICABLE STANDARD

Under Fed. R. Civ. P. 12(b)(5), a complaint may be dismissed for insufficiency of service of process. However, where service of process is found to be ineffective, the court has discretion to either dismiss or to quash service which has been made. Nat'l Expositions, Inc. v. DuBois, 97 F.R.D. 400 (D.C. Pa. 1983).

Service of process upon foreign corporations is governed by Fed. R. Civ. P. 4(h). In the United States, a foreign corporation may be served either pursuant to the laws of the state in which the district court is located or by delivering a copy of the summons and complaint to an officer or agent within the United States. Fed. R. Civ. P. 4(h)(1), incorporating, Fed. R. Civ. P. 4(e). Outside the United States, service may be accomplished in several ways, 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 Extra-judicial Documents (the "Hague Convention"). Fed. R. ...


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