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Zipper v. Nichtern

March 30, 2007

SAUL ZIPPER, PLAINTIFF,
v.
ALAN M. NICHTERN AND BARTON LIMOUSINE CORP., DEFENDANTS / THIRD-PARTY PLAINTIFFS,
v.
HEALTHSOUTH, THIRD-PARTY DEFENDANT / FOURTH-PARTY PLAINTIFF,
v.
FITTER INTERNATIONAL, INC. D/B/A FITTER FIRST, FOURTH-PARTY DEFENDANT.



The opinion of the court was delivered by: Garaufis, United States District Judge

MEMORANDUM & ORDER

Before the court is a motion to dismiss filed by Fourth-Party Defendant Fitter International, Inc. d/b/a Fitter First ("Fitter" or "Fourth-Party Defendant"). That motion is based on the theories of insufficient service of process, lack of personal jurisdiction, and forum non conveniens. In the alternative, Fitter moves the court to sever the action against it from all other actions. For the reasons set forth below, the motion to dismiss is GRANTED on the ground of lack of personal jurisdiction. The motion for severance is therefore moot.

I. Background

Saul Zipper ("Zipper" or "Plaintiff") alleges that Alan M. Nichtern ("Nichtern"), while acting within the scope of his employment by Barton Limousine Corp. ("Barton"), operated a car that collided with Zipper's car, thereby injuring Zipper. Zipper sued Nichtern and Barton (together, "Defendants") for this injury, alleging that they "were negligent, reckless and careless in the ownership, maintenance, operation, and control of their motor vehicle." (Am. Compl. ¶ 17.)

When Defendants deposed Zipper, he testified that his left knee, which he apparently (although the briefs do not make this clear) claimed to have injured in the accident with Nichtern, was later re-injured during physical therapy when he used an exercise device known as a "Versa Fitter Pro." After hearing Zipper's testimony, Nichtern and Barton filed a third-party complaint against Zipper's physical therapist, Healthsouth ("Healthsouth" or "Third-Party Defendant"), alleging that Healthsouth negligently caused the injury to Zipper's left knee. Healthsouth then filed a complaint of its own against Fitter, which manufactured the Versa Fitter Pro.*fn1

II. Analysis

A. Fitter's Motion to Dismiss

Fitter moves to dismiss Healthsouth's Fourth-Party Complaint pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient service of process, pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction, and pursuant to Fed. R. Civ. P. 12(b)(3) under the doctrine of forum non conveniens. I consider the first two theories in turn. Because I grant the motion on the ground of lack of personal jurisdiction, I do not address the issue of forum non conveniens.

1. Insufficient Service of Process

The parties agree that Fitter is a Canadian Corporation. (See Am. Fourth-Party Compl. ¶¶ 1-4; Fitter Moving Br. at 2.) Fitter asserts, and Healthsouth does not dispute, that Fitter's principal place of business is in Calgary, Alberta, Canada. (Fitter Moving Br. at 2.) HealthSouth initiated its action against Fitter via personal service upon Margaret Stack ("Stack"), a Controller for Fitter in Calgary. (See Affidavit of Service signed by Larry Robson, dated Nov. 4, 2005.)

Fitter argues that such service was insufficient under the Federal Rules of Civil Procedure and the Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters ("Hague Convention"), November 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. (Fitter Moving Br. at 2.) According to Fitter, the only proper manner for HealthSouth to serve Fitter was via one of two "Central Authorities" designated under the Hague Convention: the United Nations Criminal and Treaty Division in Ottawa and the Civil Enforcement Agency of the Sheriff of Alberta. (Id. at 3.) Because HealthSouth did not avail itself of either Central Authority, Fitter argues, this court lacks jurisdiction over HealthSouth's action. (Id.)

This court's analysis begins with the Federal Rules of Civil Procedure.*fn2 According to Rule 4(h)(2), "service upon a . . . foreign corporation . . . shall be effected . . . in a place not within any judicial district of the United States in any manner prescribed for individuals by subdivision (f) except personal delivery as provided in paragraph 2(C)(i) thereof." Rule 4(f), in turn, provides that service may be effected outside the United States "by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention[.]" Fed. R. Civ. P. 4(f)(1).

The United States and Canada are both contracting parties to the Hague Convention. This court must therefore consider what methods of service are appropriate under that treaty. If personal service upon Fitter's Controller is among the "means authorized by the Hague Convention," Fed. R. Civ. P. 4(f)(1), then Fitter's motion to dismiss must be rejected to the extent that it relies on HealthSouth's manner of serving process.

The Second Circuit has observed, and this court acknowledges, that "[t]he Hague Convention provides for several alternate methods of service: (1) service through the Central Authority of member states; (2) service through consular channels; (3) service by mail if the receiving state does not object; and (4) service pursuant to the internal laws of the state." See Burda, 417 F.3d at 300 (citing Hague Convention Arts. 5, 6, 8, 9 & 10); see also Hague Convention, Art. 19 ("To the extent that the internal law of a contracting State permits methods of transmission, other than those provided for in the preceding articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions."). HealthSouth does not argue that it employed the first, second, or third of these methods, and the court finds that it did not. The court must therefore consider whether personal service upon Stack, Fitter's Controller, constitutes "service pursuant to the internal laws of" Canada or Alberta.

Alberta's Rules of Court provide that "[a] document by which an action or other proceeding is commenced shall be served personally." Alberta Reg. 390/68, Alberta Rules of Court § 14. The question, then, is whether personal service upon Stack constitutes personal service upon Fitter. It does:

Personal service is effected on a corporation . . . by leaving a true copy of the document to be served with . . . the manager, office manager, cashier, secretary, agent, attorney, councillor, alderman, director, vice-president, executive vice-president, treasurer, secretary-treasurer, branch manager, assistant manager, comptroller, ...


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