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
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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
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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.
Wednesday, May 04, 2011
Service of Process under Article 19 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 attorney or lawyer affiliated with this law firm, did not represent any of the parties in the action.
Sbarro, Inc., Plaintiff v. Tukdan Holdings, Ltd. a/k/a Takdan, Ltd. and Danny Werner, Defendant, 13016-10
Supreme Court, County of Suffolk, PART 44
Civil Practice
Justice Elizabeth H. Emerson
Decided: April 28, 2011
Upon the following papers numbered 1-17 read on this motion for default and cross motion to dismiss;
Notice of Motion and supporting papers 1-5;
Notice of Cross Motion and supporting papers 6-12;
Answering Affidavits and supporting papers 14-16;
Replying Affidavits and supporting papers; Other 17; it is,
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ORDERED that the motion by the plaintiff for an order of default against the defendants and the branch of the cross motion by the defendants for a stay of this action are referred to oral argument, which shall be held on June 22, 2011 at 11:00 a.m., Supreme Court, Courtroom 7, Arthur M. Cromarty Criminal Court Building, 210 Center Drive, Riverhead, New York 11901 ; and it is further
ORDERED that the branch of the cross motion by the defendants to dismiss the complaint is denied.
The defendant Tukdan Holdings, Ltd. ("Tukdan"), is an Israeli corporation whose principal place of business is in Israel, and the defendant Danny Werner is an Israeli resident. The plaintiff, a New York corporation whose principal place of business is in Melville, New York, commenced this action against the defendants, Tukdan and Werner, by personally serving them in Israel in accordance with Israeli law and by mailing copies of the summons and complaint to them by registered mail in Israel. The defendants failed to answer the complaint or
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otherwise appear. The plaintiff subsequently moved for an order of default against them, and the defendants cross moved, inter alia, to dismiss the complaint on the ground that they were not properly served pursuant to the Hague Convention. Specifically, the defendants argue that, pursuant to Israel's declarations and reservation to the Hague Convention, the only permissible method of service on the defendants was through Israel's Central Authority.
The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 UST 361, TIAS No. 6638 [1969]) is a multilateral treaty designed to simplify the methods for serving process abroad to assure that defendants sued in foreign jurisdictions receive actual and timely notice of suit and to facilitate proof of service abroad (see, Fernandez v. Univan Leasing, 15 AD3d 343, 344 [2nd Dept]). Pursuant to the Hague Convention, the primary method of service is through the Central Authority established by each member state. The use of the Central Authority, however, is not mandatory (see, Canizio & Singh, Service of Process and the Hague Convention, NYLJ, Aug. 27, 2010). Article 19 of the Hague Convention permits service by any method permitted by the internal laws of the country in which service is being made (see, Fernandez v. Univan Leasing, supra at 344). Moreover, article 10 permits service of process by mail directly to the person abroad provided that the State of destination does not object in its ratification to such service (Id. at 344). Article 10 provides as follows:
Provided the State of destination does not object, the present Convention shall not interfere with —
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,
(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
(c) 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.
It is undisputed that the State of Israel is a signatory to the Hague Convention and that it objected to paragraphs (b) and (c) of article 10.
At issue, then, is paragraph (a) and its use of the word "send" rather than the word "service," which is used in paragraphs (b) and (c). The First and Third Departments interpret the word "send" in article 10 (a) to authorize something other than "service" in the legal sense, such as the mere transmittal of notices and legal documents, and not the service of process that initiates a lawsuit and secures jurisdiction over an adversary party (see, Sardanis v. Sumitomo Corp., 279 AD2d 225, 229 [1st Dept]; Reynolds v. Woosup Koh, 109 AD2d 97, 99 [3rd Dept]).
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That interpretation, however, has not been followed in the Second Department and is not binding on this court. The Second Department has followed the Fourth Department in interpreting the word "send" in article 10 (a) as synonymous with "service" and permitting service of process by registered mail when, as here, the State of destination has not objected to the use of postal channels under article 10 (a) (see, Fernandez v. Univan Leasing, 15 AD3d 343, 344-345 [2nd Dept]; Rissew v. Yamaha Motor Co., 129 AD2d 94, 97-98 [4th Dept]). Moreover, a Special Commission of the Hague Convention that met in 2003 considered the issue and concluded that the term "send" in article 10 (a) is to be understood as meaning "service" through postal channels (see, Canizio & Singh, Service of Process and the Hague Convention, NYLJ, Aug. 27, 2010). The U. S. State Department has, likewise, stated that it is incorrect to suggest that the Hague Convention prohibits as a method of service the sending of a copy of the summons and complaint by registered mail to a defendant in a foreign country (Id.).
Here, the defendants were personally served in accordance with Israeli law and copies of the summons and complaint were mailed to them by registered mail in Israel. The court finds that, under these circumstances, service was proper. Accordingly, the branch of the cross motion by the defendants which is to dismiss the complaint is denied.
The remaining issues are referred to oral argument. Only counsel fully familiar with and authorized to settle, stipulate, or dispose of this action shall appear at oral argument.