United States District Court, D. New Jersey
H. RODRIGUEZ U.S.D.J.
matter is before the Court on motion of Defendant Yusuf Bin
Ahmed Kanoo Company, Ltd. to dismiss the Complaint pursuant
to Federal Rules of Procedure 12(b)(2), 12(b)(5), and
12(b)(6), and on the basis of forum non conveniens. Oral
argument on the motion was heard on December 6, 2017 and the
record of that proceeding is incorporated here. For the
reasons placed on the record that day as well as those
articulated here, the motion will be granted.
a breach of contract case. Plaintiff alleges that the parties
had a longstanding business relationship which soured when
Defendant Yusuf Bin Ahmed Kanoo Co., Ltd. failed to pay
Plaintiff Aviation Technology & Turbine Service, Inc.
over $1, 000, 000 for the purchase of gas turbine products
beginning in 2009 and continuing for several years. Plaintiff
is a New Jersey corporation and Defendant operates in Saudi
Arabia. The motion before the Court asserts that proper
service was not made, the Courts lacks personal jurisdiction
over the Defendant, Saudi Arabia is a more appropriate forum
for this litigation, and Plaintiff has failed to sufficiently
state a claim against Defendant.
a federal court may exercise personal jurisdiction over a
defendant, the procedural requirements of service of summons
must be satisfied.” Omni Capital Int'l Ltd. v.
Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Under
Fed.R.Civ.P. 12(b)(4), a party may file a motion asserting
insufficient process as a defense. Additionally, under Rule
12(b)(5), a party may file a motion asserting insufficient
service of process as a defense. “When a party moves to
dismiss under Rule 12(b)(5), the party making the service has
the burden of demonstrating its validity.” Laffey
v. Plousis, No. 05-2796, 2008 WL 305289, at *3 (D.N.J.
Feb. 1, 2008), aff'd, 364 Fed.Appx. 791 (3d Cir.
Rule of Civil Procedure 4(h)(2) provides that, for “a
place not within any judicial district of the United States,
” service may be made “in any manner prescribed
by Rule 4(f) for serving an individual, except personal
delivery under (f)(2)(C)(i).” In this case, Plaintiff
attempted service by requesting and receiving an ex
parte “Order to Appoint Special Process Service to
Serve a Corporation in a Foreign Country.” The Order
appointed a Special Process Server “for the purpose of
serving process” on Defendant in Saudi Arabia “by
delivering a copy of the Summons and Complaint to an officer,
a managing or general agent, or to any other agent authorized
by appointment or by law to receive service of process and,
if the agent is one authorized by statute to receive service
and the statute so requires, by also mailing a copy to the
Defendant.” [Doc. 6.] Plaintiff's Special Process
Server delivered a copy of the Summons and Complaint to an
Abdul Jaleel, “Office-in Charge.” [Doc. 7.]
delivery alone is not appropriate when serving a foreign
corporation. See Trump Taj Mahal Assocs. v. Hotel Servs.,
Inc., 183 F.R.D. 173, 179 (D.N.J. 1998) (concluding that
personal service on an officer of a foreign corporation was
ineffective under Rule 4(h)(2)). In addition, Abdul Jaleel,
was not, and never has been, authorized to accept service on
behalf of Kanoo; he was not an “officer” or
“managing or general agent” of Kanoo,
was an administrative assistant in Kanoo's Travel
Division. (Jaleel Decl. ¶ 3; Danish Decl. ¶ 2.)
Service on such an employee, who has no authority to exercise
discretion on behalf of the company, is not proper under Rule
4(h) or under Saudi Arabian law. See Gottlieb v. Sandia
Am. Corp., 452 F.2d 510, 513 (3d Cir. 1971) (defining a
“general agent” as one who has “broad
executive responsibilities, ” and exercises them on a
continuing bases as opposed to sporadically); Second Alissa
Decl. ¶ 9 (explaining that service of process on a
person lacking the written authorization or holding a validly
issued power of attorney is improper).
also was not properly made under Federal Rule of Civil
Procedure 4(f)(2)(A) as Plaintiff did not serve Kanoo
“by a method . . . prescribed by the foreign
country's law for service in that country.” Saudi
Arabian law requires that service on a corporation be made
pursuant to the updated Article 17 of the Law of Procedure
Before Shari'ah Courts (“Law of Procedure”)
to the company's director(s), a person acting on their
behalf, or a person representing the director(s). (Second
Alissa Decl. ¶¶ 5-6, 8-9, 10-12.) Article 13 of the
Law of Procedure requires the “signature [of the person
receiving process] on the original.” (Id.
¶ 5.) There is no such signature on the purported proof
of service. [Doc. 7.]
Plaintiff has failed to establish personal jurisdiction over
the Defendant in this case. “[O]nce the defendant
raises the question of personal jurisdiction, the plaintiff
bears the burden to prove, by a preponderance of the
evidence, facts sufficient to establish personal
jurisdiction.” Carteret Sav. Bank, FA v.
Shushan, 954 F.2d 141, 146 (3d Cir. 1992). The plaintiff
may not “rely on the bare pleadings alone in order to
withstand the defendant's . . . motion . . . .”
Time Share Vacation Club v. Atl. Resorts, Ltd., 735
F.2d 61, 66 n.9 (3d Cir. 1984). Instead, “the plaintiff
must sustain its burden of proof in establishing
jurisdictional facts through sworn affidavits or other
competent evidence.” Id.
exercise personal jurisdiction over a defendant, a federal
court sitting in diversity must undertake a two-step inquiry.
IMO Indus., Inc. v. Kierkert, AG, 155 F.3d 254, 259
(3d Cir. 1998). First, the court must apply the relevant
state's long-arm statute to see if it permits the
exercise of personal jurisdiction. Id. Second, the
court must apply the principles of due process. Id.
In New Jersey, this inquiry is conflated into a single step
because “[t]he New Jersey long-arm rule extends to the
limits of the Fourteenth Amendment Due Process
protection.” Carteret Sav. Bank, FA, 954 F.2d
at 145 (citing N.J. Court R. 4:4-4(c)). Due Process requires
a plaintiff to show that a defendant has “certain
minimum contacts with [the forum] such that the maintenance
of the suit does not offend traditional notions of fair play
and substantial justice.” Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945).
jurisdictional defense is raised, the plaintiff must show
that the Court can exercise specific or general jurisdiction.
Mellon Bank (East) PSFS, N.A. v. DiVeronica Bros.,
Inc., 983 F.2d 551, 554 (3d Cir. 1993). To establish
general jurisdiction, a plaintiff must “show
significantly more than mere minimum contacts, ” and
that the defendant's forum contacts are “continuous
and substantial.” Gehling v. St. George's Sch.
of Med., Ltd., 773 F.2d 539, 541 (3d Cir. 1985). In this
case, Plaintiff acknowledges that the Court does not have
general jurisdiction over Kanoo. (Pl. Br., p. 9 n.1.)
contrast to general jurisdiction, the Court can exercise
specific jurisdiction when the defendant purposely directs
its activities at the forum, the litigation arises out of at
least one of those activities, and the exercise of
jurisdiction would “comport with fair play and
substantial justice.” Burger King v.
Rudzewicz, 471 U.S. 462, 463 (1985). Where, as here, no
evidentiary hearing was held on the jurisdictional issue,
“the plaintiff need only establish a prima facie case
of personal jurisdiction and the plaintiff is entitled to
have [its] allegations taken as true and all factual disputes
drawn in [its] favor.” O'Connor v. Sandy Lane
Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007)
(quoting Miller Yacht Sales, Inc. v. Smith, 384 F.3d
93, 97 (3d Cir. 2004)). Establishing specific jurisdiction
requires a three-part inquiry: whether there is purposeful
availment-i.e., whether the defendant purposefully directed
its activities at the forum; whether there is
relatedness-i.e., whether ...