Tuesday, May 01, 2012 Italian Company Sued In New York Court - Italian Facebook Page Insufficient Predicate for Personal Jurisdiction Over Italy Based Company
The following case involves a New York commercial lawsuit against an Italian company. More specifically, an injured American party sued an Italian company which designed a boat that was later manufactured in the United States. The American plaintiff claimed that the Italian company’s facebook page provided the necessary minimum contacts to allow a New York Court to obtain personal jurisdiction over the Italian company. In the below decision, the New York Federal court found that the Italian company’s facebook page did not establish systematic and continuous activity necessary for the New York Court to obtain personal jurisdiction over the Italian company.
Kelly M. Lyons, Plaintiff v. Rienzi & Sons, Inc., Defendant., 09-CV-4253
U.S. District Court, Eastern District Read more . . .Wednesday, March 14, 2012 Italian Custody Order Recognized in New York Family Court under the UCCJEA
The New York County Family Court recently held that that an Italian Court which issued the initial custody order in respect to the parties’ child, maintained exclusive and continuing jurisdiction over the matter. Further the New York Court held that it did not have the jurisdiction to consider or modify the Italian mother’s New York custody petitions.
In rendering its decision, the New York Family Court specifically took into consideration the undisputed fact that the Italian father had previously obtained an Italian Order from a Florence Court which had awarded him sole custody of the parties’ child. The New York Court found that the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") applied to this Italian family law matter. Therefore, the New York Court stated the Italian Custody Order must be treated in the same manner as if it were issued by a State of the United States. The New York Family Court stated in relevant part:
“Because the Italian courts issued the initial custody order, Italy possesses exclusive, continuing jurisdiction. The ensuing and numerous subsequent orders by the Italian courts, both trial and appellate, should properly be viewed as modifications of the initial Italian order. The Italian courts had continuous, exclusive jurisdiction to modify the original Italian order because the father has been a continuous resident of Italy since the year 2000, notwithstanding the mother’s and child’s primary residence in New York between 2006 and 2010.”
The full text of the case was as follows:
In the Matter of Maura B. v. Giovanni P., [Index Number Redacted by Court], New York County Family Court Read more . . .Friday, February 17, 2012 Service of Process by Mail under the Hague Convention Found Permissible.
In the recently decided 3rd department case (New York State Thruway Authority v. Frenech, 512512, 3rd Dept. 2012) service of process by mail under the Hague convention was found permissible. Consequently, the 1st department is now the only department whose interpretation of the Hague Convention renders the service of documents by mail impermissible.
In light of the fact obtaining jurisdiction over a defendant in a foreign jurisdiction can be quite challenging in some signatory nations, this departure from the previous standard which disallowed service by mail will substantially improve the plaintiff’s ability to obtain jurisdiction over a foreign defendant.(See Hague Service of Process over an Italian company or person)
The following case is posted for informative purposes only. The posting of this case does not in any way reflect Marzano & Sediva’s legal opinion or view on the underlying matter. Furthermore, this law firm, nor any attorney or lawyer affiliated with this law firm, did not represent any of the parties in the action.
The text of the decision can be found here: New York State Thruway Authority v. Frenech
Thursday, January 19, 2012 Recovery for Damages for Passengers on the Costa Concordia
On Friday, January 13, 2012, the $450 million Italian Costa Concordia cruise ship slammed into a reef off the tiny Italian island of Giglio. Initial reports in Italy have alleged that the Capitan (Francesco Schettino) made an made an unauthorized detour on the ship’s previously authorized route as a favor to one of the Costa Concordia’s employees. Further allegations of gross negligence on the part of both the captain and the cruise company (Costa Cruises) and its parent company, Carnival Cruise Lines Inc. (NYSE: CCL, LSE: CCL, and NYSE: CUK) have also been made.
As a result of this Italian maritime disaster, 11 people have been confirmed dead and more than 20 remain missing. As a consequence of the mismanagement, disorganization and lack of emergency preparation on the part of the cruise company (Costa), the passenger disembarkation was total chaos. Few lifeboats were properly utilized, forcing many passengers to jump off the ship and swim to safety. Further, it appeared to many of the passengers that the crew members were ill prepared and untrained.
This type of maritime disaster is a classic case of gross negligence by the cruise liner. Under Italian maritime law and civil law, the Costa Cruise company owed a legal duty to each of passengers to provide for their safety in the event of an accident. The actions and inactions of the Costa cruise company and employees will be investigated in the coming months by the Prosecutor. Costa Concordia Passengers will likely have legal claims against the Costa Cruise company for the loss of services, damages for the ruined holiday, loss of property, recovery of the personal injuries and mental and emotional trauma they suffered as a result of this travesty.
If you or some you know was involved in this Italian cruise catastrophe and is seeking to make a claim for the recovery of your losses, it is important you seek Italian legal counsel as soon as possible to avoid preservation of evidence and the statute of limitations issues. The Italian legal system provides two methods for injured passengers to file a complaint. Under Italian law, each injured Costa Concordia cruise ship passenger may file a criminal complaint, a civil complaint or both.
The US –Italian law firm of Marzano & Sediva has offices in both New York and Italy and is well prepared to aggressively represent Italian and American passengers recently injured on the Italian Costa Concordia Cruise. Lawyers in the Italian US firm remain available for any inquiries regarding your legal rights in the wake of this disaster.
Please contact our office for a free consultation at 646-225-6549, by email at sediva@marzanolaw.com or on our website at www.marzanolaw.com.
Tuesday, October 18, 2011 How a Civil Lawsuit Works in Italy - Summary of Italian Civil Procedure
How a Civil Lawsuit Works in Italy - Summary of Italian Civil Procedure
An Italian lawsuit is a civil action brought in an Italian Court in which a plaintiff (called ‘attore’) demands a legal remedy for a loss resulting from a defendant (called ‘convenuto’) action.
The Italian civil lawsuit is regulated by the Italian Civil Procedural Code (‘Codice di procedura civile’)
It can be started by filing a summons and complaint or a recourse, depending on the matters of the dispute. The summons and complaint is the ordinary mean to bring a civil action.
Before bringing the action before the Italian Court, the plaintiff must serve the summons and complaint (called ‘atto di citazione’ or just ‘citazione’) summoning the defendant to appear before the competent Italian Judge in a determined hearing to be held.
The summons and complaint must be served by an official bailiff (called ‘Ufficiale Giudiziario’).
After service of the initiating documents, the plaintiff must file the served summons and complaint in the Clerk’s Office in the competent Court of jurisdiction.
The Italian legal order provides for two different Courts of first instance depending on the matters and the value of the dispute:
- The Italian Giudice di Pace (literally ‘Justice of the Peace’), sitting as a sole judge.
- The Italian Tribunale, sitting as a sole judge - in most of the cases - or as a collective, depending on the matter of the dispute.
The Italian Justice of the Peace is an honorary judge with competence on determined and less important matters provided by the civil procedural code: by the way of an example, dispute whose value is lower than €5,000; car accidents up to €20,000.
The Italian Tribunal has a broader and residual jurisdiction, having competence on all the disputes beyond the competence of the Italian Justice of the Peace. In substance, the Italian Tribunal is almost always competent notwithstanding those cases assigned to the Justice of the Peace by law.
If the Italian lawsuit must be started by recourse, because law so requires (e.g. in case of labor lawsuits), it must be filed before the competent Italian Court requiring the Judge to fix a hearing and then the plaintiff must serve the recourse and the Judge’s decree fixing the hearing to the defendant.
During the lawsuit, the plaintiff must give the evidence of his right and the defendant is required to respond to the plaintiff's complaint.
If the plaintiff is successful, an Italian judgment (called ‘sentenza’) will be given in the plaintiff's favor, enforcing his right, or awarding damages, imposing injunctions to prevent an act or compel an act.
The Italian decision of first instance is generally automatically and provisionally enforceable.
After the final decision has been granted, either party or both may appeal from the judgment of the judge of first instance; even the prevailing party may appeal, if, for example, prevailing party wanted a larger award than the one which was granted.
The parties may appeal a judgment granted by the Italian Justice of the Peace before the Italian Tribunal, and a Italian judgment granted by the Italian Tribunal before the Court of Appeals (‘Corte d’Appello’).
The Italian Court of Appeals sits as a collective body. Any Justice of the Peace and Tribunal is included in a determined Italian District of Court of Appeals.
The procedure to bring the action before the Italian Court of Appeals is similar to the procedure followed in the proceedings of first instance.
After the final decision has been made by the Italian Court of Appeals, either party or both may appeal the judgment before the Italian Supreme Court of Cassation (‘Corte di Cassazione’) in Rome.
The Italian Court of Cassation ensures the observation and the correct interpretation of Italian law by ensuring the same application of law in the inferior and appeal courts. Appeals to the Italian Court of Cassation can be just brought as a matter of right, as the Court is precluded to get to the heart of the matter.
Appeals to the Italian Court of Cassation generally come from the Italian Courts of Appeals, but litigants may also appeal directly from the judge of first instance.
When the lawsuit has finally been resolved, or the allotted time to file an appeal has expired, the matter is res judicata.
See: http://marzanolaw.com/lawyer/New_York_City_and_Salerno_Italy_fq524.htm
Please be advised this article is being provided for informational purposes only This article is not intended to provide, and should not be relied on as a source of, legal advice. Marzano & Sediva expressly disclaims all liability based on any information contained in this article.
Sunday, August 21, 2011 Child Permited to Travel to Italy for Visitation with FatherThe following case is posted for informative purposes only. The posting of this case does not in any way reflect Marzano & Sediva’s legal opinion or view on the underlying matter. Furthermore, this law firm, nor any New York or Italian attorney or lawyer affiliated with this law firm, did not represent any of the parties in the action.
Decided on July 8, 2011
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ.
IN THE MATTER OF PIETRO RUSSO, PETITIONER-RESPONDENT,
v
NICOLE CARMEL, RESPONDENT-APPELLANT.
Appeal from an order of the Family Court, Ontario County (Stephen D. Aronson, A.J.), entered October 28, 2010 in a proceeding pursuant to Family Court Act article 6. The order, insofar as appealed from, granted petitioner permission to travel to Italy with the child.
It is hereby ORDERED that the order so appealed from is unanimously modified as a matter of discretion in the interest of justice by vacating the restriction that the trip shall occur in the spring of 2011 and by instead providing that the trip shall not occur between the dates of December 23 through December 26, no matter the year in which the trip occurs, and as modified the order is affirmed without costs.
Memorandum: Petitioner father commenced this proceeding seeking joint custody and expanded visitation, and respondent mother cross-petitioned to reduce the father's overnight visitation. The parties thereafter entered into a stipulation resolving those issues, however, and they agreed that Family Court would rule on the father's request to travel to Italy with the parties' child to visit the father's parents and other relatives who reside there. The mother now contends that the court erred in permitting the father to travel to Italy for a period of not more than 15 days on 60 days' notice to the mother. Although the mother is correct that the court failed to set forth the facts it deemed essential in permitting the child to travel with the father to Italy (see CPLR 4213 [b]), the record is sufficient to enable us to make those findings (see Matter of Dubuque v Bremiller, 79 AD3d 1743). We thus reject the mother's contention that the matter must be remitted to Family Court to make those findings (cf. Matter of Rocco v Rocco, 78 AD3d 1670).
The record establishes that, although the father's visitation with the child is limited to a maximum of 48 hours at a given time, the father has a close bond with her and, during visitation, he prepares her meals, bathes her, administers medication as necessary and takes her on outings. Further, the mother did not express any concerns that the father would abscond with the child (cf. Matter of Ish-Shalom v Wittmann, 19 AD3d 493, 494; see generally Puran v Murray, 37 AD3d 472). Instead, the mother opposed the father's request on the ground that the two-year-old child had never been away from the mother for more than 48 hours and would be in an unfamiliar [*2]environment with relatives who were unknown to the child. We conclude that the mother's concerns in opposition to the request do not warrant a denial of the father's request. Indeed, we conclude that it is in the best interests of the child to travel with the father to Italy to meet her extended family (see generally Puran, 37 AD3d 472). Inasmuch as the order provides that the trip shall occur in the spring of 2011 and this Court stayed the order, we modify the order by vacating that restriction. We further modify the order to provide that the trip shall not occur between the dates of December 23 and December 26, without regard to the year in which the trip occurs.
Entered: July 8, 2011
Friday, June 03, 2011 Personal Jurisdiction over Italian Citizen in NY Matrimonial Action
The following case is posted for informative purposes only. The posting of this case does not in any way reflect Marzano & Sediva’s legal opinion or view on the underlying matter. Furthermore, this law firm, nor any New York or Italian attorney or lawyer affiliated with this law firm, did not represent any of the parties in the action.
.A.D., Plaintiff v. M.M., Defendant, Index Number Redacted
Supreme Court, Westchester County
Family Law
Justice Linda Christopher
Decided: May 13, 2011
The following papers numbered 1-32 were considered in connection with defendant's motion and plaintiffs cross-motion:
PAPERS NUMBERED
Notice of Motion/Affirmation/Affidavit/Exhibits/Memorandum of Law 1-6
Affirmation in Opposition/Exhibits 7-10
Reply Affirmation/Exhibit 11-12
Notice of Cross-Motion/Affidavit/Affirmation/Exhibits/Memorandum of Law 13-27
Affirmation in Opposition to Cross-Motion and in Support of Defendant's 28-31
Motion/Reply Affidavit/Exhibit/Memorandum of Law
Notice of Rejection 32
DECISION AND ORDER
*1
In this matrimonial action the defendant moves for an order dismissing the action for lack of personal jurisdiction, pursuant to CPLR §3211(a)(8). The plaintiff cross-moves for an order
*2
denying defendant's motion and directing defendant to pay plaintiff's attorneys the sum of $7500 pursuant to DRL §237.
The parties were married on October 29, 1983 in Italy. The action for divorce was commenced on September 8, 2010 with the filing of a Summons with Notice and Verified Complaint. There is one unemancipated child of the marriage born October 16, 1991, and one emancipated child born April 18, 1984.
The parties stipulated to extend defendant's time to answer, or otherwise move with respect to the complaint up to and including February 3, 2011. On February 8, 2011 defendant served and filed the instant motion seeking dismissal of the complaint for lack of personal jurisdiction over defendant. Defendant argues that he is not, nor has he ever been, a resident or domiciliary of New York, and that the court lacks personal jurisdiction over him in that none of the provisions set forth in CPLR§302(b) have been satisfied. Pursuant to CPLR §302(b)
Personal jurisdiction over non-resident defendant in matrimonial actions or family court proceedings. A court in any matrimonial action or family court proceeding involving a demand for support, alimony, maintenance, distributive awards or special relief in matrimonial actions may exercise personal jurisdiction over the respondent or defendant notwithstanding the fact that he or she no longer is a resident or domiciliary of this state, or over his or her executor or administrator, if the party seeking support is a resident of or domiciled in this state at the time such demand is made, provided that this state was the matrimonial domicile of the parties before their separation, or the defendant abandoned the plaintiff in this state, or the claim for support, alimony, maintenance, distributive awards or special relief in matrimonial actions accrued under the laws of this state or under an agreement executed in this state.
CPLR §302(b).
*3
Defendant asserts that New York was never the matrimonial domicile of the parties, and that no marital act ever occurred in New York. He alleges that the marital residence was in Rome, Italy where the parties raised their children, until plaintiff abandoned the marital home in Italy and moved with the children to her current domicile in White Plains, NY. Defendant avers that he remained in Italy and maintains his residence there. Defendant further claims that additionally, in order to assert long-arm jurisdiction over him, pursuant to CPLR 302(b), sufficient minimum contacts with New York must be established so that "traditional notions of fair play and substantial justice" are not offended. Senhart v. Senhart, 4 Misc.3d 862, 866-867 (NY Sup. Ct. 2004), aff'd, 18 AD3d 642 (2nd Dept. 2005). Defendant contends that he lacks the requisite minimum contacts with New York required to confer personal jurisdiction. He claims he resides in Italy and does not have any contacts with New York other than to occasionally visit his children. He avers that he does not conduct any business activity and does not have an office or phone number in New York, nor does he own any real property or tangible personal property in New York. Also, defendant claims that plaintiff has engaged legal counsel in Italy to negotiate the settlement of marital issues with his attorneys in Italy.
Plaintiff argues in her opposition1 that defendant does in fact have the requisite contacts with the State of New York to confer jurisdiction. She alleges that in 2003, the defendant and she agreed that she and the children would move to White Plains, New York because of the medical facilities and programs available there for the parties' child, M., who has serious medical issues.
*4
Plaintiff asserts that the residence in White Plains was purchased in 2003 with marital funds transferred to the plaintiff's New York bank account, and that on a monthly basis defendant transfers funds to the White Plains bank account to pay all of the family's necessary expenses. Plaintiff claims defendant's statement that he has never been a resident or domiciliary of New York is false, in that he obtained health insurance for himself and the family by advising the insurance company that his address is --, NY. Moreover, she alleges that the parties' son attends school in Westchester. Plaintiff also argues that defendant has used the Westchester County courts to have a guardian appointed on behalf of the parties' son's person and property and that he has created a supplemental needs trust, which was to be funded by him, wherein he is a co-trustee and the trust and his actions as trustee are governed by the laws of New York. Plaintiff asserts that defendant is repeatedly conducting business within Westchester County and the State of New York in that, inter alia, in 2005 in connection with high level position with the Italian government, he arranged an Autumn Concert for the benefit of the Westchester ARC Foundation, the Westchester ARC Board and the Italians in the U.S., and in that he is the Executive Director/Managing Director of a company which has a division in New York. Plaintiff claims that her claim for support, maintenance, equitable distribution, a distributive award or special relief in this matter accrued under the laws of New York as defendant has been paying her approximately $15,000 per month since 2003. Plaintiff also alleges that, until recently, defendant would visit with the parties' son and her for two days per month, when his work schedule permitted.
In addition to claiming that the Court obtained personal jurisdiction over defendant pursuant to CPLR §302(b), plaintiff states that on October 30, 2010 the defendant was personally served with the Summons with Notice at the Regency Hotel in New York, and she has submitted an affidavit of service attesting to such service.2 (See plaintiff's Exhibit J). Defendant objects to
*5
this submission by plaintiff, and claims she waived her right to rely on it, as she had two prior opportunities to introduce it.3 He asserts that plaintiff is implying, without offering any argument, that defendant was personally served in New York, and for the first time she attempted to introduce an affidavit of service that purported same, by merely attaching said affidavit as a superfluous exhibit4. Defendant complains that on December 8, 2010 a copy of the particulars of service were requested from plaintiff's counsel, and despite promises to supply same, no documents were received.
Defendant contends that the service effected in New York must be vacated, in that it was predicated upon subterfuge. He claims that plaintiff lured him into New York for the purpose of effectuating service upon him.5 Defendant alleges that he planned to come to New York in
*6
September 2010 to visit his son, M., but that plaintiff advised him to postpone his trip until the end of October, and requested he bring the parties' older son, M., with him. Defendant asserts that he was aware that M. made plans to meet a school friend, M. E. C., in New York during the October trip. Defendant alleges that Ms. E.C. also periodically assists plaintiff in the New York household. It is defendant's contention that the October trip was arranged to lure him into New York in order for Ms. E. C. to serve him at his hotel in New York. Defendant claims that he is entitled to a traverse hearing since he has raised a question of fact as to whether he was lured into the state by subterfuge so as to effectuate personal service. Allen v. Betterly, 258 AD 907 (2nd Dept. 1939).
As a general rule, personal jurisdiction is obtained by a reasonable method of service upon a person while he or she is physically present within the State. Rawstorne v. Maguire, 265 NY 204, 207 (1934); See, CPLR §301. "[J]urisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of 'traditional notions of fair play and substantial justice.'" Burnham v. Superior Court of California, 495 US 604 (1990). However,
[t]he general rule is that when a nonresident defendant...has been enticed into the jurisdiction by fraud and deceit for the purpose of obtaining service upon him, the service thereby effectuated will be vacated. (citations omitted). It is equally well established that if the defendant is not lured into the jurisdiction, but is here of his own free will, the service will not be invalidated merely because it was accomplished through the use of deception.(citations omitted).
Hammett v. Hammett, 74 AD2d 540 (1st Dept. 1980).
In DeMartino v. Rivera, 148 AD2d 568 (2nd Dept. 1989) the Second Department vacated
*7
a default judgment, finding that service of process was procured by fraud and/or coercion, and therefore, the court did not have personal jurisdiction over defendant. In this case, the defendant, a New Jersey resident, was involved in a car accident. Id. at 569 Approximately three years after the accident, he received a series of phone calls directing him to come to New York to get papers related to the accident, and threatening him that if he failed to come to New York he would face "serious legal consequences and problems." Id. The defendant did come into New York and, when he traveled to where the caller had directed him to go, he was met by an individual who handed him a summons and complaint and $46 in cash. Id. The appellate court found that defendant had been "lured into New York on the assurance that no 'serious legal consequences and problems' would befall him." Id. at 570.
The same result ensued in Terlizzi v. Brodie, 38 AD2d 762 (2nd Dept. 1972). In that case, defendants who were New Jersey residents were called at home a few years after they had been involved in an automobile collision. Id. They were told they had been chosen to receive tickets to a Broadway show as part of a promotion to get their opinion on a questionnaire regarding the new 7:30 pm show time. Id. After the performance, while they were still in the theater, the defendants were served with a summons by the man who had been sitting behind them; no questionnaire was given to defendants. Id. The court found that the service effected was invalid, as the defendants were lured into New York by fraud or deception. Id.
In United Industrial Corporation v. Schreiber, 51 AD2d 688 (1st Dept. 1976) the court distinguished the situation where, at the suggestion of plaintiff, a nonresident defendant made just one trip to New York to discuss settlement of the matter at issue, and was then served with process at the close of the settlement meeting, requiring that service be vacated, [see, Olean St. Ry. Co. v. Fairmount Const. Co., 55 AD 292 (4th Dept. 1900)], from the situation where
*8
nonresident defendants served in New York, were constantly coming into New York to attend board of directors meetings, and although settlement discussions were in progress, they were part of the regular business of the board of directors, rendering service valid. United Industrial Corporation, 51 AD2d 688. The court found that in the latter situation there did not appear to be a scheme on the part of the plaintiff to lure defendants into New York in order to serve them with process. Id.
Similarly, in Hammett v. Hammett, 74 AD2d 540, the First Department upheld service upon a nonresident respondent who was served while present in New York. In addition to the fact that the respondent failed to controvert petitioner's statement that she did not request respondent to come into the jurisdiction, the court found it pertinent that respondent acknowledged he would spend one weekend each month in New York at the parties' apartment, and that occasionally he came to New York during the week for business and social occasions. Id.
Defendant argues that plaintiff lured him into New York for the purpose of effectuating service upon him because she allegedly requested that he change his plans to come to New York to visit the parties' son, from September, as originally planned, to October, and then had him served while he was here in October. The Court does not find defendant's argument to be persuasive. In the instant matter the parties' son, M., was living in New York with plaintiff since 2003 and defendant would visit him on occasion. Any time that defendant made arrangements to visit the child in New York, plaintiff would have been made aware that he was going to be present in the State, and would have had an opportunity to effectuate service upon him. In this instance, defendant had been planning to come into the jurisdiction, albeit one month earlier, in September, for such a visit. Also, when defendant came into New York in October, he was
*9
aware that his older son, M., was planning to visit with his school friend, M. E. C., who was the woman who ultimately served defendant.
The Court finds the facts of this matter are inapposite to the facts of DeMartino and Terlizzi, where the courts found that the defendants were lured into the jurisdiction by fraud or deception. In those matters, the defendants came into New York solely for a purpose that was fabricated by the plaintiff, and they were then served with process. The defendant in DeMartino came into New York based on plaintiff telling him that if he failed to come to New York he would face "serious legal consequences and problems." In Terlizzi, plaintiffs lured defendants into New York on the pretense that they had been chosen to receive tickets to a Broadway show as part of a nonexistent promotion to get their opinion on the questionnaire regarding the new 7:30 pm show time, but no questionnaire was ever given to the defendants.
In this case, similar to Hammett and United Industrial, where the courts upheld a challenge to service within the state upon a nonresident, the defendant was served with process, when he was in New York for the purpose of visiting his son. While plaintiff may have requested that defendant come in October as opposed to September for the visit, that did not change the fact that there was a legitimate purpose for the trip, to wit: visiting his son. Also, this was not an isolated incident; respondent came to New York on other occasions to visit his son, as well as having made visits for business relating to his government position.
It is this Court's opinion that plaintiff did not lure defendant into New York on pretense. The fact that she requested defendant to come visit their son in October, when he already had planned to come in September did not constitute luring defendant into the jurisdiction by fraud and deceit for the purpose effecting service. The Court further determines that a hearing is not required in this matter; even if the Court accepts all of defendant's allegations as being true, the
*10
Court does not find that plaintiff lured him into New York by fraud and deception necessitating vacating service. Accordingly, defendant's motion to dismiss the complaint for lack of personal jurisdiction is denied, as personal jurisdiction has been obtained over defendant by serving him with process while he was present within the State.
Cross-Motion
Plaintiff requests $7500 in counsel fees. She alleges that she has been unemployed since the parties' marriage, and that defendant earns in excess of $900,000 plus substantial benefits annually. Plaintiff's request is denied at this time without prejudice. Plaintiff has failed to comply with 22 NYCRR 202.16(k). She has not provided a sworn Statement of Net Worth, a copy of the fully executed retainer agreement, counsel's billing statements and the money paid on account, if any, by plaintiff or on behalf of plaintiff.
All matters not decided herein are denied.
This decision shall constitute the order of the Court.
E N T E R
1. Plaintiff initially opposed the motion to dismiss on the grounds that defendant failed to comply with the Westchester Supreme Court Matrimonial Operational Rules in that he did not request a pre-motion conference on this issue, and that defendant's motion to dismiss was untimely. The matter came before the Court on February 28, 2011 at which time the Court granted plaintiff an opportunity to answer and address the merits of the motion, and gave defendant an opportunity to reply. The Court adjourned the motion to March 21, 2011 and directed defendant to have his papers filed by 9:30 a.m. on that date.
2. If defendant was validly served with process while present within the State of New York, the issue of whether the Court acquired personal jurisdiction over him by operation of the long arm provisions of CPLR §302(b) is not determinative, as presence in New York is a valid basis for jurisdiction. See, CPLR §301.
3. Defendant claims that at the court appearance on the return date of the motion, plaintiff did not mention that she wished to submit an affidavit of service in her request for leave to resubmit her opposition.
4. However, the Court notes that plaintiff had previously submitted the same affidavit of service with her answering papers which were filed February 23, 2011, in support of her allegation that defendant was personally served at the Regency Hotel in New York. No argument was made by plaintiff at that time regarding service having been effectuated in New York. She simply attached the affidavit as part of the procedural history.
5. Defendant makes the argument that plaintiff lured him into New York for purposes of serving him in his Affirmation and Affidavit in Support of Defendant's Motion to Dismiss and in Opposition to Plaintiff's Cross-Motion and defendant's Memorandum of Law. Plaintiff filed a Notice of Rejection with regard to these documents on the basis that they were not timely served, as they were received by plaintiff's counsel via regular mail on March 23, 2011. She claims these documents were to be received by her and the Court no later than March 21, 2011. Plaintiff also wrote a letter to the Court dated March 25, 2011 requesting that the Court disregard defendant's Reply papers. At the court appearance on February 28, 2011 when asked if an appearance was going to be required on March 21, the Court had stated that the motion was returnable the 21st so defendant had to have his papers in court 9:30 unless he heard from the Court otherwise. Defendant appeared on March 21, 2011 the return date of the motion and submitted his Reply papers (he claims in a letter he wrote to the Court dated April 5, 2011 that on March16 he received a notification from Ecourts reflecting the appearance). Plaintiff did not appear on March 21 (she claims in her letter dated March 25 that she understood no appearances were required unless she was notified otherwise, which she was not). The Reply papers were served upon plaintiff via regular mail on March 21, 2011. The Court reminds plaintiff that notwithstanding that plaintiff had already submitted and served opposition to defendant's Motion to Dismiss on procedural grounds only, without having addressed the merits, the Court granted plaintiff another opportunity to answer the motion when the parties appeared on the return date of February 28, 2011.
Thursday, June 02, 2011 Certificate of Service under Article 15 of the Hague Convention
The following case is posted for informative purposes only. The posting of this case does not in any way reflect Marzano & Sediva’s legal opinion or view on the underlying matter. Furthermore, this law firm, nor any New York or Italian attorney or lawyer affiliated with this law firm, did not represent any of the parties in the action.
Lydia Scheck and Dieter Scheck, Plaintiffs v. The Republic of Argentina, Defendant, 10 Civ. 5167 (TPG)
U.S. District Court, Southern District
Civil Practice
District Judge Thomas P. Griesa
Decided: May 23, 2011
OPINION
*1
Plaintiffs are two German citizens who claim to have obtained six money judgments each against the Republic of Argentina (the "Republic") in a German court, based on their ownership of defaulted Republic-issued German bonds. In this action, plaintiffs seek to enforce their German judgments. Plaintiffs filed a motion for summary judgment in September 2010, but the court placed it in abeyance pending completion of service of process pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, 20 U.S.T. 361, at *1.
Plaintiffs now renew their motion for summary judgment. They also argue that a default judgment against the Republic should be entered.
The purpose of this opinion is to explain that service of process has been accomplished. Briefing on plaintiffs' motion for summary judgment
*2
should now be completed, so that this motion can be decided. The court declines to enter a default judgment.
Background
On July 6, 2010 plaintiffs commenced the present action seeking recognition and enforcement of the German judgments. Plaintiffs allege that their German judgments against the Republic are "final, conclusive and enforceable where rendered," making them enforceable in this jurisdiction pursuant to the Uniform Foreign Country Money Judgments Recognition Act, N.Y. C.P.L.R. §5302.
The terms and conditions for the German bond series at issue designate an authorized agent for service of process in Germany for suits brought in Germany. The documents do not provide an authorized agent for service of process in the United States, or for suits brought in the United States.
Nevertheless, on July 15, plaintiffs attempted to deliver the summons and complaint to the Vice President of Banco de la Nación Argentina in New York ("BNA"), the authorized agent for service of process for claims brought on U.S. bonds. Then, on August 17, 2010, plaintiffs, by means of Process Service Network LLC, sent a copy of the summons and complaint, and other required forms, to the central authority designated by the Republic for service of process pursuant to Article 2 of the Hague Service Convention—the Argentine Ministry of Foreign Affairs (the "Ministry").
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On September 13, 2010, the Republic moved to dismiss the complaint for lack of personal jurisdiction and insufficient service of process. On September 27, 2010, plaintiffs moved for summary judgment.
On October 7, 2010, the parties' entered into a stipulation, which was so ordered by the court, as follows: (1) the motion to dismiss is denied as moot; (2) the complaint and motion for summary judgment are held in abeyance pending the completion of service as required by the Hague Service Convention; and (3) the Republic shall answer, move to dismiss, or otherwise respond to the complaint and motion for summary judgment on or before 60 days after the completion of service of the complaint on the Republic.
On February 7, 2011, plaintiffs' process server contacted the Republic's Consul General in Los Angeles and was told four days later that there were problems. On February 11, 2011, plaintiffs' process server sent an agent to the Ministry to inquire about the status of process. The Ministry told the agent that the service was "in process." Plaintiffs have not yet received a certificate of service or delivery.
Discussion
Service of Process
Pursuant to Fed. R. Civ. P. 4(j)(1), the Foreign Sovereign Immunities Act (the "FSIA"), 28 U.S.C. §1608(a), sets out the requirements for service of process on a foreign state:
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a) Service in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state:
(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision; or
(2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents…
As the governing documents do not provide for an authorized agent for service of process for a suit on the German bonds in the United States, the second paragraph applies. The applicable international convention here is the Hague Service Convention (the "Convention"), which the United States, Germany, and Argentina have all ratified.
Proper service of process pursuant to the Convention requires several steps. Plaintiffs must first transmit the service request and accompanying documents to a foreign state's designated central authority. Convention, Articles 2 and 3. The Republic's designated central authority is the Argentine Ministry of Foreign Affairs (the "Ministry"). The request must comply with the form annexed to the Convention, also referred to in the Convention as the "model," hereafter referred to by the court as the "request form." Id. at Art. 3. Article 3 addresses the form that the request for service of process must take:
The authority or judicial officer competent under the law of the State in which the documents
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originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality.
The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate.
The request form requires the applicant to state its name and address, the address of the receiving authority, and the address of the person or entity to be served. The request form also requires the applicant to select the method of service for the designated central authority to use in serving that person or entity, pursuant to Article 5 of the Convention. There are three options:
(a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory;
(b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed; or
(c) by delivery to the addressee, if the addressee accepts it voluntarily.
The request form must list the documents to be served, and requires that the form bear a signature and/or stamp.
If the central authority determines that the request does not comply with the provisions of the Convention, it must promptly inform the applicant of its objections to the request. Id. at Art. 4. If there are no issues of compliance, the designated central authority must then serve,
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or arrange to have an authorized party serve, the documents on the defendant. Id. at Art. 5. In order for service of process to be considered complete, the plaintiff must receive a certificate of service from the designated central authority pursuant to Section 1608(c)(2) of the FSIA and Article 6 of the Convention.
Article 15 of the Convention allows a court to obtain jurisdiction over a foreign defendant for purposes of giving judgment when a plaintiff has not received a certificate of service or delivery if:
(a) The document was transmitted by one of the methods provided for in this Convention,
(b) A period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,
(c) No certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.
See In re South African Apartheid Litigation, 643 F. Supp. 2d 423, 433 (S.D.N.Y. 2009).
Plaintiffs completed the first step by delivering the service request form and required accompanying documents for service of process to the Ministry on August 17, 2010. Such documents included a copy of the summons issued by this court on July 6, 2010, and the complaint in English and a copy in Spanish translation. On the request form, plaintiffs selected two possible methods for the Ministry to use to serve
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the Republic, options (a) and (c), as discussed above. Plaintiffs also apparently signed the form.
The Republic argues that service of process remains incomplete because the required service forms plaintiffs submitted to the Ministry are defective. The Republic refers the court to a letter from the Ministry to counsel for plaintiffs sent January 11, 2011. The Ministry wrote that the service papers were defective for two reasons. First, plaintiffs selected two methods for service on the Republic on the request form, instead of just one. The Ministry claims that, under Argentine legislation, the request is defective because "the court that would intervene must address the notice of service with reference to one of such procedures (one or the other), because the items a) and c) provide for methods of service of process that are different, and are therefore exclusive of each other." Second, the signature on the form was not an original. The Ministry claims that this is a "formal issue" that prevents the Ministry from moving forward.
The court rules that the objection to plaintiffs' selection of two service methods is invalid and frivolous. The Ministry could have served the documents by either method.
The court also rules that the objection to the copy of the signature on the form is invalid. There is no requirement that the form bear an original signature. Indeed, the Convention states that a stamp would be proper.
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Although plaintiffs have not yet received a certificate of service, the court is entitled to assert jurisdiction over the Republic because plaintiffs have satisfied the Article 15 requirements. Plaintiffs properly transmitted the documents to the Ministry more than nine months ago, and no certificate of any kind has been received even though plaintiffs made every reasonable effort to obtain it by contacting the Ministry in Argentina.
The court concludes that there was proper service of process.
Further Proceedings
Pursuant to the stipulation of October 7,2010, the Republic will answer, move to dismiss, or otherwise respond to the complaint and motion for summary judgment. The stipulation gave the Republic 60 days after completion of service. This is now amended so that 60 days runs from the time of the present opinion.
The record shows no basis for entry of a default judgment against the Republic.
This opinion resolves document number 19 listed on the docket.
SO ORDERED.
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