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Petmas Investors Ltd. v. Sameiet Holbergs Gate 19

United States District Court, D. New Jersey

November 18, 2014

PETMAS INVESTORS LTD., Plaintiff,
v.
SAMEIET HOLBERGS GATE 19, et al., Defendants.

REPORT & RECOMMENDATION

LOIS H. GOODMAN, Magistrate Judge.

This matter is opened to the Court by way of the Complaint filed by Plaintiff ("Complaint" or "Compl.") [Docket Entry No. 1], as well as the Court's November 19, 2013 Order to Show Cause [Docket Entry No. 4] as to the bases pursuant to which this Court may exercise jurisdiction over the Complaint, by which Plaintiff Petmas Investors LTD ("Plaintiff") asks the Court to (1) quash the summons served upon Plaintiff with regard to an action pending in the Oslo District Court in the Kingdom of Norway ("the Norway Action") or (2) dismiss the pending complaint in the Norway Action [Docket Entry No. 1]. Plaintiff submitted the Supplemental Brief of Plaintiff in Support of Order to Show Cause on November 25, 2013 (the "Supplemental Brief" or "Pl.'s Br."). [Docket Entry No. 10]. For the reasons set forth below, the undersigned concludes that this Court lacks jurisdiction over this matter and therefore respectfully recommends that the Complaint be dismissed.

I. Background

As best can be gleaned from the Complaint, Defendants Sameiet Holbergs Gate 19, Ophelia Bar Gino Alickaj, Hammervoll Holding A.S., Gilbo Holdings A.S., and Anceca A.S. (collectively "Defendants") operate businesses located at Holbergs Gate 19, 0166 Oslo, Norway.[1] Compl. § I, ¶¶ 2-5 [Docket Entry No. 1-1]. During the summer of 2008, renovations to a unit on the third floor of the Holbergs Gate property damaged Defendants' units. Id. § V, ¶ 6. Plaintiff alleges that it purchased the unit in October 2008, after completion of the renovations. Id. § V, ¶ 6. Defendants initiated the Norway Action against Plaintiff in October 2012, seeking compensation for damages they allegedly incurred as a result of the renovations. Id. Introduction ¶ 2; Exh. B (Writ of Summons and Particulars of Case to Oslo District Court, dated October 11, 2012) [Docket Entry No. 1-2 at pp. 12-16]. On March 6, 2013, the Oslo District Court issued a summons advising Plaintiff that a November 19, 2013 trial date had been set for the Norway Action. Id. Introduction ¶ 2; Exh. B (Summons to main hearing in a civil case) [Docket Entry No. 1-2 at p. 11].[2] Shortly thereafter, the Oslo District Court ordered Plaintiff to respond to the Norway Action complaint within 21 days or risk the entry of a default judgment. Id., Exh. B (Order to give notice of intention to defend) [Docket Entry No. 1-2 at pp. 9-10]. Defendants served Plaintiff with the Complaint in the Norway Action on May 7, 2013. Id. Introduction, ¶ 1.

Plaintiff alleges that Defendants' service did not comply with the formalities of both the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 (the "Hague Service Convention" or the "Convention"), and the Federal Rules of Civil Procedure. Compl. Introduction ¶ 1; § IV, ¶ 2. Plaintiff's attempts to argue defective service before the Norwegian judge were unsuccessful. Id. § VI, ¶2; § VII, ¶ 5; Affirmation of Geir Ostgard in Support of Plaintiff/Petitioner's Request for Relief ¶¶ 3, 4, 6, 9 ("Ostgard Affirmation") (attached to the Complaint as Exhibit G) [Docket Entry No. 1-3 at pp. 3-8]. As a result, Plaintiff filed the Complaint on November 8, 2013, seeking (1) a declaration that the May 7, 2013 service was fatally defective; (2) either a temporary or permanent injunction enjoining Defendants from giving any effect to the allegedly defective service; (3) an order quashing the service or dismissing the Norway Action; and (4) the costs associated with the filing and a monetary sanction "in light of the attitude of Defendants." Compl. § 8. Plaintiff attached the Ostgard Affirmation as well as the Affirmation of William George ("George Affirmation") (attached to the Complaint as Exhibit H) [Docket Entry No. 1-3 at pp. 9-13] in support of the application to dismiss or quash the complaint in the Norway Action.

By Order dated November 19, 2013, the undersigned required Plaintiff to show cause as to the bases for this Court's jurisdiction to quash foreign service that purports to have been made appropriately upon Plaintiff or to dismiss the complaint in the Norway Action. [Docket Entry No. 4]. Following receipt of a facsimile letter from Plaintiff's counsel dated November 19, 2013, indicating that Plaintiff believed there was no need for further briefing, the Court issued an Order Clarifying Order to Show Cause, making clear that the Court expected Plaintiff to brief the issue raised, i.e. the Court's authority to opine on the propriety of service at this stage, given that the Norway Action is currently pending before a foreign court. [Docket Entry No. 7 at 2]. The Order to Show Cause required Plaintiff to serve Defendants with a copy of the Order, and any previous submissions, and granted Defendants ten days to file any response with the Court. [Docket Entry No. 4 at 2]. Plaintiff submitted the Supplemental Brief on November 25, 2013. Plaintiff also confirmed that Defendants were served with a copy of the Order to Show Cause on November 22, 2013, and a copy of the Supplemental Brief on November 26, 2013. [Docket Entry No. 11, 12]. Defendants have not submitted any pleadings in response.

II. Plaintiff's Arguments

The Complaint contains Plaintiff's initial arguments, and is supported by the Ostgard and George Affirmations. Geir Ostgard states that he is a Norwegian attorney who represents Plaintiff in the Norway Action. He spends a good portion of this affirmation denigrating the Norwegian legal system, describing it as "not sufficiently evolved" and "with no obvious competence to comprehend the issues at bar." Ostgard Affirmation ¶ 1. Without any support, Ostgard insists that the Norwegian Court will recognize the American order, and at the very least "will void the processes and compel Defendants/Respondents to reinitiate their action de novo. " Id. ¶ 14. Ostgard states that if this Court issues the requested relief "the Norwegian judicial system taken at a level higher than this trial court will, at the least under the principles of comity order the recognition of" that ruling. Id. ¶ 14 (emphasis in original). Ostgard also attacks the impartiality of the Norwegian magistrate. Id. ¶ 18-21. Ostgard's affirmation is not limited to the issue raised in the Complaint, i.e. the sufficiency of service, but also raises questions concerning whether the right party has been named in the Norway Action and whether the Norwegian court has in personam jurisdiction over Plaintiff. Id. ¶¶ 15-17.

William George, on the other hand, presents himself as an American attorney. George asserts that he is licensed to practice "in the Federal Courts of the United States of America, " George Affirmation at p. 20, but there is no indication of the jurisdictions to which he is admitted. The George Affirmation takes the tone of an expert opinion and presumes to offer a legal opinion as to the merits of the Complaint, based upon what George characterizes as his "experience in International Dispute Resolutions, both as they relate to existing International Conventions... and in my capacities as attorney and arbitrator in matters involving International Arbitration." Id. at p. 20. George indicates that he was asked to review the file and "answer certain questions of American law" regarding the service on Plaintiff. Id. at pp. 20-21.

While at times incomprehensible, the gist of the George Affirmation is that the complaint in the Norway Action should be, or has already been, dismissed for various reasons, including that the wrong party was named and served, the complaint was not served within six months, and various exhibits are missing from the copy of the complaint served on Plaintiff. See generally id. at 23. Without any legal citation, George concludes that "US courts are solely competent to determine the sufficiency of service." Id. at p. 23 (emphasis in original). He then goes on to say, again with no more support than a general reference to "US, International Law, and Hague Convention dispositions, " that "there are no alternatives to the dismissal of the" Norway Action. Id. at p. 24 (emphasis in original).[3]

In its various submissions, Plaintiff alleges that the court in the Norway Action refused to entertain arguments akin to those presented here. Ostgard Affirmation ¶¶ 4, 6; Compl. § VI ¶ 2 (citing the Ostgard Affirmation); Id. § VII ¶ 5 (same). In addition, Plaintiff contends that both the foreign judge and Defendants refuse to acknowledge the strictures of the Hague Service Convention. Ostgard Affirmation ¶¶ 7-9. Plaintiff claims that it is therefore apparent that the judge in the Norway Action is biased against Plaintiff. Id. ¶¶ 18, 19, 21.

Plaintiff focuses on an interpretation of the requirements and effects of the Hague Service Convention and its interplay with the Declaratory Judgment Act. See generally Pl.'s Br. According to Plaintiff, the Hague Service Convention requires that foreign process be served upon a central national authority, which may object to service that does not comply with the procedural rules the receiving country has in effect. Id. at 6-7. Plaintiff states that the Convention is silent as to which nation has jurisdiction to determine the propriety of service when the central authority is deprived of the opportunity to object because foreign process is served directly upon the named defendant, as Plaintiff argues was done here. Id. at 7.

Plaintiff takes the view that under Article 15 of the Hague Service Convention, foreign service is inherently subject to judicial scrutiny. Id. at 8. Plaintiff describes the Convention as neither expressly prohibiting courts in the country of receipt from adjudicating the validity of service nor barring simultaneous judicial review of the propriety of service. Id. at 8-9. In light of this silence, a court's analysis necessarily shifts to considering the purposes underlying the Hague Service Convention, including extending process protections to American citizens defending cases overseas and promoting international judicial collaboration. Id. at 9-12 (citing DeJames v. Magnificence Carriers, Inc., 654 F.2d 280 (3d Cir. 1981)). Plaintiff contends that the former purpose would be irreparably frustrated if the Hague Service Convention did not invest American courts with the power to quash defective service, Id. at 11-12, and argues that the Declaratory Judgment Act provides a means for the Court to quash the allegedly defective service or to dismiss the Norwegian Action. Id. at 12-14. Plaintiff acknowledges, ...


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