United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
LEDA DUNN WETTRE UNITED STATES MAGISTRATE JUDGE.
the Court are pro se defendant Ara Ohanian's
motion to dismiss for insufficient service of process (ECF
No. 27); pro se defendant Alice Sevan Ohanian's
motions to dismiss for insufficient service of process and
for lack of personal jurisdiction (ECF Nos. 29, 44); and
plaintiff Tekno Products, Inc.'s motion for substituted
service on Ara Ohanian (ECF No. 50). The Honorable Susan D.
Wigenton, U.S.DJ. referred the motions to the undersigned for
a Report and Recommendation. These motions are decided
without oral argument pursuant to Rule 78 of the Federal
Rules of Civil Procedure. Having considered the parties'
written submissions and for good cause shown, the Court
recommends that defendants' motions to dismiss for
insufficient service of process be DENIED, plaintiffs motion
for substituted service be TERMINATED AS MOOT, and Alice
Sevan Ohanian's motion to dismiss for lack of personal
jurisdiction be GRANTED.
Tekno Products markets and sells Garden Genie gloves, which
are gardening gloves with fingertip extensions for digging.
(Am. Compl. ¶ 16, ECF No. 22). Tekno holds copyrights
for the box in which it packages Garden Genie gloves and for
an advertising video. (Id., ¶¶ 39, 46).
Tekno also claims common law trademark rights in and to the
words Garden Genie and the Garden Genie trade dress.
(Id. ¶¶ 74-75). Defendants Ara Ohanian and
Alice Sevan Ohanian ("Alice Sevan") are
co-inventors of competing Honey Badger digging gloves.
(Id. ¶¶ 5-6, 17).
Ohanian has been marketing "patent pending" Honey
Badger gloves since 2013. (Id. ¶ 18). When
plaintiff decided to begin selling its own Garden Genie
digging gloves, it reached out to Ara Ohanian to discuss a
possible business relationship; ultimately, it decided not to
do business with Ara Ohanian. (Id. ¶¶
19-20). Plaintiff alleges that Ara Ohanian retaliated against
Tekno's rejection by: (1) publishing a number of similar
articles on the internet (using various aliases) accusing
Tekno's owners of being "scoundrels" from
"Jew Jersey" (id. ¶ 25); (2) opposing
Tekno's application to register the Garden Genie
trademark with the United States Patent and Trademark Office
and filing his own trademark application for Garden Genie
(id. ¶¶ 26, 28, 31); and (3) setting up a
website from which he sold counterfeit Garden Genie gloves
using Tekno's copyrighted packaging and advertising video
(id. ¶¶ 29, 33-34). Plaintiff further
alleges that Ara Ohanian marketed his Honey Badger gloves as
"patent pending" years before he filed a patent
application for the product. (Id. ¶¶ 18,
32). In an amended complaint dated April 1, 2019, plaintiff
brings claims for copyright infringement, false patent
marking, New Jersey trade libel, unfair competition and false
designation of origin, trademark infringement, unjust
enrichment, conspiracy, and spoliation of evidence.
Ohanian and Alice Sevan have filed numerous, repetitive
objections to the claims asserted, predominantly challenging
service of process and the existence of personal jurisdiction
in New Jersey.
Insufficient Service of Process
12(b)(5) of the Federal Rules of Civil Procedure authorizes
dismissal of a complaint where plaintiff fails to effect
service of process. "Upon determining that process has
not been properly served on a defendant, district courts
possess broad discretion to either dismiss the plaintiffs
complaint for failure to effect service or to simply quash
service of process." Umbenhauer v. Woog, 969
F.2d 25, 30 (3d Cir. 1992). Here, plaintiff bears the burden
of establishing valid service. Grand Entm 't Grp.,
Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d
Sevan is a Canadian citizen who resides in Montreal, Quebec.
(Am. Compl. ¶ 6). With respect to the initial complaint,
plaintiff submitted the affidavit of Thierry LaMarche, a
"huissier de justice," translated as
"bailiff," who stated under oath that he is
"an Officer of Justice authorized by the law of the
Province of Quebec to effect service of legal process"
and that he completed personal service on Alice Sevan at her
home in Montreal on January 16, 2019. (LaMarche Aff. of
Service, ECF No. 12). However, Alice Sevan denies personal
service, arguing that the complaint was left in her mailbox.
Given the dispute over service of the initial complaint,
plaintiff hired another bailiff in Quebec to effect service
of the amended complaint. Plaintiff submitted the affidavit
of Martin Dupuis, who affirmed that on "May 1st at 7:15
P.M. I presented myself at the door of Ms. Ohanian.... She
opened the door and refused me documents. I served her [the
summons, amended complaint, and its exhibits] by leaving them
in her mailbox, in a sealed envelope." (Dupuis Aff. of
Service, ECF No. 43). The bailiff further affirmed that he
endorsed the date and time of service over his signature on
the back of the documents served. (Id.). Alice Sevan
agrees that the operative pleading was left in her mailbox,
but nonetheless argues that service was improper.
4(f)(1) of the Federal Rules of Civil Procedure provides for
service on an individual in a foreign country "by any
internationally agreed means of service that is reasonably
calculated to give notice, such as those authorized by the
Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents," of which the United States and
Canada are signatories. The principle mechanism for service
of process under the Hague Convention is through the Central
Authority of the relevant signatory State. See Hague
Convention arts. 2-7, Nov. 15, 1965, 20 U.S.T. 361. However,
signatories to the Hague Convention can also consent to
alternate methods of service, including service via
diplomatic and consular channels, postal channels, and - of
relevance here - through judicial officers of the State.
Specifically, Article 10(c) of the Hague Convention provides
that as long as the "State of destination does not
object, the present Convention shall not interfere with...
the freedom of any person interested in a judicial proceeding
to effect service of judicial documents directly through the
judicial officers, officials or other competent persons of
the State of destination."
is no dispute that the Hague Convention authorizes personal
service by a huissier/bailiff in Quebec. Indeed, Canada's
accession to the Hague Convention explicitly states that it
does not object to "[s]ervice through judicial officers,
notably 'huissiers' etc. of the requested
State." Canada's Accession to the Hague Convention,
declaration III, 1529 U.N.T.S. 499 (1989). See
O'Keefe v. St. Lawrence & Atl R.R. Co., 167
F.R.D. 30, 32 (D. Vt. 1996) ("The normal procedure in
Canada is for personal service to be done by a sheriff or a
'huissier' in Quebec"). Moreover, Quebec's
Code of Civil Procedure includes a provision for service by
Service or notification by bailiff is made by delivering the
document to the addressee personally or, if this cannot be
done, by leaving it at the addressee's domicile or
residence with a person who appears to be capable of
receiving it. If the document cannot be so delivered, it must
be left at an appropriate place in a sealed envelope or in
any other form that protects its confidentiality. If the
document is being served, the bailiff signs and stamps me
document and records die date and time on it. If the
addressee refuses to accept the document, the bailiff records
the refusal on the document, which is ...