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APGI-International, Inc. v. MERO-TSK

July 6, 2010


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



This case arises out of an alleged oral agreement between Plaintiff APGI-International, Inc. ("APGI") and Defendant MERO- TSK, Inc. GmbH & Co. KG ("Mero"). Currently before the Court is Defendant's motion to dismiss. It contends first, that the suit is inactive in violation of Local Civil Rule 41.1, and second, that the Court lacks personal jurisdiction over Mero. For the reasons described herein, Defendant's motion will be denied. The Court finds that APGI timely filed affidavits to show that good cause existed not to dismiss the action as an inactive case. In addition, Mero, by sending communications to APGI's New Jersey office to negotiate a contract that would be partially executed in New Jersey, exhibited the "minimum contacts" necessary to submit itself to this Court's personal jurisdiction.


In September 2005, Defendant contracted with the Huron Glass Company to supply and install glass curtain wall and window accessories at the Cleveland Museum of Art.*fn1 Compl. ¶ 4. On the purchase order for the project, Mero listed Plaintiff as a subcontractor. Id. at Ex. A. Mero and APGI subsequently signed a "Minutes of Meeting" document that outlined a number of specific terms for completing design and construction work on the project. Id. at Ex. B. APGI describes this arrangement as a "joint venture." Pl.'s Mem. in Opp'n to Def.'s Mot. 1. The meeting took place at Mero's offices in Würzburg, Germany on October 18, 2005. Id at 3.

It then appears, for reasons unspecified by the parties, that the joint venture was abandoned. See id. at 3. Thereafter, beginning in February 2006, Mero sent a number of communications to APGI referencing an "agreement" between the parties for completing the Cleveland Art Museum project.*fn2 Specifically, APGI has provided copies of six facsimiles sent by Mero from its offices in Germany to APGI's office in Glassboro, New Jersey, most of which seek to negotiate terms of this agreement. Pl.'s Mem. in Opp'n to Def.'s Mot. Ex. C. As a result of these communications, APGI stored project materials in its New Jersey warehouse, completed design and engineering work at its New Jersey offices, and, prior to the alleged breach of contract, planned to perform specialized fabrication work in New Jersey. Id. at 4.

APGI, a Delaware corporation with its principal place of business in New Jersey, filed suit on December 5, 2008, alleging breach of contract and unjust enrichment. After filing, Plaintiff served Mero, a German corporation, by international registered mail.*fn3 At that point, the action lay dormant until May 2009, when the Court sua sponte filed notice that the case would be dismissed as inactive under Local Civil Rule 41.1. See D.N.J. L.Civ.R 41.1(a). Plaintiff timely responded by certifying its service of process on Mero. On August 27, 2009, APGI filed for default judgment, as Mero had yet to file an answer to the complaint. The Court denied the motion on September 30 because APGI's service by mail on Mero was improper; Germany, as a signatory to the Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters, Nov. 15 1965, objects to having its nationals served with process by postal channels. Order Den. Pl.'s Mot. for Default J. ¶ 7. On December 7, 2009, the Court again filed notice that the action would be dismissed pursuant to both Local Civil Rule 41.1 as well as Federal Rule of Civil Procedure 4. APGI again timely filed an affidavit demonstrating that it had now served Mero in compliance with the Convention.

Currently before the Court is Defendant's motion to dismiss, which presents two issues: first, whether the case must be dismissed for inactivity according to the District of New Jersey's Local Civil Rules, and second, whether the Court's exercise of personal jurisdiction over Defendant is consistent with constitutional due process.



Defendant contends that this claim must be dismissed as an inactive case according to Local Civil Rule 41.1(a), which states:

[C]ivil cases . . . which have been pending in Court for more than 120 days without any proceedings having been taken therein must be dismissed for lack of prosecution by the Court . . ., unless good cause is shown with the filing of an affidavit from counsel of record or the unrepresented party.

D.N.J. L.Civ.R 41:1(a). Dismissal of a claim under Rule 41.1 is an extreme sanction to be used in limited circumstances. Taylor v. New Jersey Lottery, No. 05-5944, 2009 WL 1411492, at *3 (D.N.J. May 19, 2009). Although the language of the Rule is phrased in mandatory terms, the Court has discretion to withdraw a call for dismissal. Lorillard Tobacco Co. v. Asian American Market, No. 06-948, 2007 WL 1217966, at *1 n.1 (D.N.J. Apr. 23, 2007); see also United States v. Eleven Vehicles, Their Equipment and Accessories, 200 F.3d 203, 215 (3d Cir. 2000) ("[A] district court can depart from the strictures of its own local procedural ...

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