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Tekno Products, Inc. v. Glove Trends Inc.

United States District Court, D. New Jersey

July 25, 2019

TEKNO PRODUCTS, INC., Plaintiff,
v.
GLOVE TRENDS, INC., ARA OHANIAN, and ALICE SEVAN OHANIAN, Defendants.

          REPORT AND RECOMMENDATION

          HON. LEDA DUNN WETTRE UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         I. BACKGROUND

         Plaintiff 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).[1]

         Ara 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.

         Ara 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.

         II. DISCUSSION

         A. Insufficient Service of Process

         Rule 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 Cir. 1993).

         1. Alice Sevan

         Alice 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.

         Rule 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."

         There 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 huissier/bailiff:

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 ...

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