S.Ct. at 1033-34. In addition to acting in an advisory capacity
to Perfumer's, Roure-France co-developed the original "Neroli
Nights" prototype for SAMBA, which was destined to be developed
for production and distribution in the United States by Roure.
These are sufficient purposeful acts in New York to confer
personal jurisdiction over Roure-France, presuming that
sufficient notice and service were made upon Roure-France.
II. Service of Process
Rule 4(e) of the Federal Rules of Civil Procedure requires that
service be made "under the circumstances and in the manner
prescribed" by the law of the state in which the forum court is
located. Davis v. Musler, 713 F.2d 907, 914 (2d Cir. 1983). In
New York, service of process on a corporation requires that an
officer or director of the corporation be present in the forum to
accept service of summons on its behalf. N.Y. Civ.Prac.L. & R. §§
308, 318 (McKinney's 1983 & Supp. 1990). Here, Perfumer's merely
mailed a certified copy of the summons overseas expecting
Roure-France to acknowledge receipt without objection.
Roure-France avers that it does not maintain an office or
agents in New York state, and no affidavits of service upon the
Secretary of State in Albany appear in Perfumer's papers. And
although Roure-France met with and advised Perfumer's after the
prototype fragrance was developed, such meetings were conducted
in France. Therefore, for the purposes of determining the service
issue, Roure-France never voluntarily availed itself of or
entered New York in order to accept service as required by New
York law. Nor could Roure have properly accepted service on
Roure-France's behalf because they were not held out as agents of
Absent domiciliary agents in the forum, leave of court is
mandated in order to use substituted service. N.Y.Civ.Prac. L. &
R. §§ 308, 313 (McKinney's 1983 & Supp. 1990). Perfumer's failed
to seek court assistance in serving process. Indiscriminate use
of the mails to effect service abroad does not assure either
receipt or sufficient notice of a pending action comporting with
fairness and due process. Furthermore, service effected outside
the United States on a foreign corporation demands proper service
under the constraints of the foreign domiciliary's law, unless
that law is inconsistent with requirements of the Hague
Convention Treaty. See Hague Convention on the Service Abroad
of Judicial and Extrajudicial Documents in Civil or Commercial
Matters, opened for signature Nov. 15, 1965, 20 U.S.T. 361,
T.I.A.S. No. 6638, 658, 658 U.N.T.S. 163 ("Hague Convention").
France and the United States are participants and signatories
of the Hague Convention. The Hague Convention, which takes
precedence over inconsistent foreign law, mandates that where
service is not or cannot be properly effected on a foreign
corporation in accordance with its forum's law, an agent of the
state shall be designated by the corporation to receive service
of documents. French law requires that service be made by the
applicable central authority designated by the French government,
or, alternatively, by an authorized bailiff or huissier.
Weymuller Affid. ¶ 8. Perfumer's failed to properly serve
Roure-France either by French or International law.
As such, I therefore find that service was improper. Because
Roure-France correctly preserved its jurisdictional objection,
service of summons and complaint on Roure-France is quashed as
fatally deficient. See Volkswagenwerk Aktiengesellschaft v.
Schlunk, 486 U.S. 694, 698, 108 S.Ct. 2104, 2107, 100 L.Ed.2d
Finally, Perfumer's requests additional discovery regarding the
jurisdiction questions. However, "[d]iscovery procedures are
appropriate only when there is at least some slight factual
indication that a basis for jurisdiction exists." Ronar, Inc. v.
Wallace, 649 F. Supp. 310, 317-18 (S.D.N.Y. 1986). The discovery
rules "are not a hunting license to conjure up a claim that does
not exist." Samuels v. Eleonara Beheer, B.V., 500 F. Supp. 1357,
1362 (S.D.N.Y. 1980) (Weinfeld, J.), aff'd, 661 F.2d 907 (2d
Cir. 1981). The request is therefore denied.*fn3
III. Substantive Claims
Because personal jurisdiction cannot be asserted over
Hoffman-La Roche and Roure-France, Perfumer's substantive claims
relate only to the agreement between Perfumer's and Roure.
Perfumer's alleges several claims sounding in federal and state
antitrust, conspiracy, fraud, and breach of contract based on
Roure's wrongful use of DL-alpha tocopherol, the perfume's
malodorous preservative ingredient, rather than BHT.
Perfumer's federal conspiracy and fraud claims are grounded on
allegations that Roure, with others, monopolized the use of
certain preservatives in the fragrance market in violation of § 2
of the Sherman Act. The Act, in pertinent part, states:
Every person who shall monopolize, or attempt to
monopolize, or combine or conspire with any other
person or persons, to monopolize any part of the
trade or commerce among the several States, or with
foreign nations, shall be deemed guilty of a felony.
15 U.S.C. § 2 (1980).