mandating that defendant Cuprum contribute money to an account that was
utilized, in part, to market its products here. Given these actions,
defendant Cuprum should have foreseen the possibility of being haled into
a New York court if one of its products injured an individual here.
Moreover, the exercise of jurisdiction in this case is reasonable. New
York has a distinctly palpable interest in providing a forum where its
residents may obtain relief when they are injured by allegedly faulty
goods sold here. Moreover, because the Plaintiff resides here, resolution
of the current dispute in New York is convenient and effective for him.
Resolving the current dispute here is also more efficient than doing so
elsewhere, as New York is the site of the alleged accident and good
portions of the evidence and witnesses reside here. Finally, providing a
forum to adjudicate tort actions that occur here furthers the substantive
social policy of providing accountability against those that engage in
commerce in this country and injure those that they deal with here.
The only factor weighing against the reasonableness of exercising
personal jurisdiction over defendant Cuprum in this case is the burden
that the exercise of jurisdiction imposes on it. The Court finds,
however, that on balance this factor does not outweigh the other factors
pertinent to this Court's reasonableness analysis. As such, the Court
concludes that exercising personal jurisdiction over defendant Cuprum in
this case does not offend "traditional notions of fair play and
substantial justice." International Shoe, 326 U.S. at, 316, 66 S.Ct.
154. Accordingly, any proposed amendment to defendant Cuprum's answer on
this basis would be futile. As such, its motion to amend, or in the
alternative, to dismiss on the basis of lack of personal jurisdiction is
B. Insufficiency of Service of Process
Defendant Cuprum also moves to dismiss based upon Plaintiff's failure
to serve process upon it in accordance with the Inter-American Convention
on Letters Rogatory. Plaintiff does not rebut the fact that its attempt
to serve defendant Cuprum by mailing a copy of the complaint to defendant
Cuprum's post office box in Mexico was not in compliance with this
Convention. Nevertheless, the Court disagrees with defendant Cuprum's
assertion that Plaintiff's non-compliance with the service of process
requirements contained in the Inter-American Convention on Letters
Rogatory warrants dismissal of its claims.
The Inter-American Convention on Letters Rogatory is not the exclusive
means to serve process on defendant Cuprum. See Laino v. Cuprum, S.A. de
C.V., 235 A.D.2d 25, 30, 663 N.Y.S.2d 275 (2d Dep't 1997); Mayatextil,
S.A. v. Liztex, U.S.A., No. 92 CIV 4528, 1994 WL 198696, at *5 (S.D.N.Y.
May 19, 1994); Pizzabiocche v. Vinelli, 772 F. Supp. 1245, 1249
(M.D.Fla. 1991). Pursuant to Fed.R.Civ.P. 4(f), Plaintiff could also have
served process on defendant Cuprum under the terms of the Hague
Convention on the Service of Judicial and Extra-judicial Documents in
Civil Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 ("Hague
Convention"). See Fed.R.Civ.P. 4(f). Under Article 10 of the Hague
Convention, as interpreted in this Circuit, service of process by
registered mail on a foreign defendant located in a signatory country is
permissible.*fn4 See Ackermann v. Levine, 788 F.2d 830, 839 (2d Cir.
1986); Heredia v. Transport S.A.S., Inc., 101 F. Supp.2d 158, 161
On the sparse record before the Court, it is not clear whether
defendant Cuprum via registered mail or ordinary mail. To the extent that
Plaintiff did serve defendant Cuprum in Mexico by registered mail, the
Court holds that service of process was perfected and defendant Cuprum's
motion to amend and, in the alternative, to dismiss on the basis of
insufficient service of process is denied as futile. Alternatively, if
Plaintiff served defendant Cuprum in Mexico by ordinary mail, service of
process was not perfected.
Nevertheless, in the circumstances of this case, defendant Cuprum
received actual notice of the current action by that imperfect attempt at
service of process. Moreover, has actively litigated and defended this
matter over the course of the past two years. filing not only a pending
motion for summary judgment but also an entire banker's box full of
pre-trial submissions. Thus, defendant Cuprum suffered no prejudice as a
result of this imperfection and it cannot claim that it failed to receive
notice apprizing it of the pendency of the current action. See Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314. 70 S.Ct.,
652, 94 L.Ed. 865 (1950). Furthermore, there is a strong possibility that
Plaintiff will ultimately be able to serve defendant Cuprum properly. See
Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985).
As a result, if Plaintiff has not already served defendant Cuprum via
registered mail or another manner allowed under either the Hague
Convention or the Inter-American Convention on Letters Rogatory, it must
do so within sixty days of the issuance of this Order. During this sixty
period, the Court will retain jurisdiction over the matter but quash
Plaintiff's prior attempt to serve process on defendant Cuprum. See id.
If Plaintiff fails to properly serve process or defendant Cuprum at the
expiration of this sixty period, his claims against defendant Cuprum will
once again be subject to dismissal by the Court.
Accordingly it is hereby
ORDERED that defendant Cuprum's motion to amend, and in the
alternative, to dismiss is DENIED; and it is further
ORDERED that if Plaintiff effected service of process on defendant
Cuprum in Mexico via ordinary mail he must correct this defect within
sixty (lays of the issuance of this opinion or all claims against
defendant Cuprum will be subject to dismissal; and it is further
ORDERED that the Clerk of the Court serve a copy of this Order on all
parties by mail.
IT IS SO ORDERED.