AVIATION TECHNOLOGY & TURBINE SERVICE, INC. v. YUSUF BIN AHMED KANOO CO., LTD., No. 1:2015cv07474 - Document 41 (D.N.J. 2018)
Court Description: OPINION FILED. Signed by Judge Joseph H. Rodriguez on 3/19/18. (js)
Download PDF
<![CDATA[
AVIATION TECHNOLOGY & TURBINE SERVICE, INC. v. YUSUF BIN AHMED KANOO CO., LTD. Doc. 41 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY AVIATION TECHNOLOGY & TURBINE SERVICE, INC., : Hon. J oseph H. Rodriguez : Plaintiff, : Civil Action No. 15-7474 v. : YUSUF BIN AHMED KANOO CO., LTD., Defendant. OPINION : This m atter is before the Court on m otion of Defendant Yusuf Bin Ahm ed Kanoo Company, Ltd. to dism iss the Com plaint pursuant to Federal Rules of Procedure 12(b)(2), 12(b)(5), and 12(b)(6), and on the basis of forum non conveniens. Oral argum ent on the m otion was heard on December 6, 20 17 and the record of that proceeding is incorporated here. For the reasons placed on the record that day as well as those articulated here, the m otion will be granted. Background This is a breach of contract case. Plaintiff alleges that the parties had a longstanding business relationship which soured when Defendant Yusuf Bin Ahm ed Kanoo Co., Ltd. failed to pay Plaintiff Aviation Technology & Turbine Service, Inc. over $ 1,0 0 0 ,0 0 0 for the purchase of gas turbine products beginning in 20 0 9 and continuing for several years. Plaintiff is a 1 Dockets.Justia.com New J ersey corporation and Defendant operates in Saudi Arabia. The m otion before the Court asserts that proper service was not m ade, the Courts lacks personal jurisdiction over the Defendant, Saudi Arabia is a m ore appropriate forum for this litigation, and Plaintiff has failed to sufficiently state a claim against Defendant. Service of Process “Before a federal court m ay exercise personal jurisdiction over a defendant, the procedural requirem ents of service of summ ons m ust be satisfied.” Om ni Capital Int'l Ltd. v. Rudolf W olff & Co., 484 U.S. 97, 10 4 (1987). Under Fed. R. Civ. P. 12(b)(4), a party m ay file a motion asserting insufficient process as a defense. Additionally, under Rule 12(b)(5), a party m ay file a m otion asserting insufficient service of process as a defense. “When a party m oves to dism iss under Rule 12(b)(5), the party m aking the service has the burden of dem onstrating its validity.” Laffey v. Plousis, No. 0 5-2796, 20 0 8 WL 30 5289, at *3 (D.N.J . Feb. 1, 20 0 8), aff'd, 364 Fed. Appx. 791 (3d Cir. 20 10 ). Federal Rule of Civil Procedure 4(h)(2) provides that, for “a place not within any judicial district of the United States,” service m ay be m ade “in any m anner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).” In this case, Plaintiff attem pted 2 service by requesting and receiving an ex parte “Order to Appoint Special Process Service to Serve a Corporation in a Foreign Country.” The Order appointed a Special Process Server “for the purpose of serving process” on Defendant in Saudi Arabia “by delivering a copy of the Sum m ons and Com plaint to an officer, a managing or general agent, or to any other agent authorized by appointm ent or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also m ailing a copy to the Defendant.” [Doc. 6.] Plaintiff’s Special Process Server delivered a copy of the Sum m ons and Com plaint to an Abdul J aleel, “Office-in Charge.” [Doc. 7.] Personal delivery alone is not appropriate when serving a foreign corporation. See Trum p Taj Mahal Assocs. v. Hotel Servs., Inc., 183 F.R.D. 173, 179 (D.N.J . 1998) (concluding that personal service on an officer of a foreign corporation was ineffective under Rule 4(h)(2)). In addition, Abdul J aleel, was not, and never has been, authorized to accept service on behalf of Kanoo; he was not an “officer” or “m anaging or general agent” of Kanoo, 1 but was an adm inistrative assistant in Kanoo’s Travel Division. (J aleel Decl. ¶ 3; Danish Decl. ¶ 2.) Service on such an 1 Plaintiff acknowledges that J aleel, as an Indian national, was not perm itted to serve as a director or m anager of a wholly owned Saudi Arabian com pany. (Pl. Br., p. 7.) 3 em ployee, who has no authority to exercise discretion on behalf of the com pany, is not proper under Rule 4(h) or under Saudi Arabian law. See Gottlieb v. Sandia Am . Corp., 452 F.2d 510 , 513 (3d Cir. 1971) (defining a “general agent” as one who has “broad executive responsibilities,” and exercises them on a continuing bases as opposed to sporadically); Second Alissa Decl. ¶ 9 (explaining that service of process on a person lacking the written authorization or holding a validly issued power of attorney is im proper). Service also was not properly m ade under Federal Rule of Civil Procedure 4(f)(2)(A) as Plaintiff did not serve Kanoo “by a m ethod . . . prescribed by the foreign country’s law for service in that country.” Saudi Arabian law requires that service on a corporation be m ade pursuant to the updated Article 17 of the Law of Procedure Before Shari’ah Courts (“Law of Procedure”) to the com pany’s director(s), a person acting on their behalf, or a person representing the director(s). (Second Alissa Decl. ¶¶ 5-6, 8-9, 10 -12.) Article 13 of the Law of Procedure requires the “signature [of the person receiving process] on the original.” (Id. ¶ 5.) There is no such signature on the purported proof of service. [Doc. 7.] 4 Personal J urisdiction Alternatively, Plaintiff has failed to establish personal jurisdiction over the Defendant in this case. “[O]nce the defendant raises the question of personal jurisdiction, the plaintiff bears the burden to prove, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction.” Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992). The plaintiff m ay not “rely on the bare pleadings alone in order to withstand the defendant’s . . . motion . . . .” Tim e Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). Instead, “the plaintiff m ust sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other com petent evidence.” Id. To exercise personal jurisdiction over a defendant, a federal court sitting in diversity m ust undertake a two-step inquiry. IMO Indus., Inc. v. Kierkert, AG, 155 F.3d 254, 259 (3d Cir. 1998). First, the court m ust apply the relevant state’s long-arm statute to see if it perm its the exercise of personal jurisdiction. Id. Second, the court m ust apply the principles of due process. Id. In New J ersey, this inquiry is conflated into a single step because “[t]he New J ersey long-arm rule extends to the lim its of the Fourteenth Am endm ent Due Process protection.” Carteret Sav. Bank, FA, 954 F.2d at 145 (citing N.J . Court R. 4:4– 4(c)). Due Process requires a 5 plaintiff to show that a defendant has “certain m inim um contacts with [the forum ] such that the m aintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. W ashington, 326 U.S. 310 , 316 (1945). When a jurisdictional defense is raised, the plaintiff m ust show that the Court can exercise specific or general jurisdiction. Mellon Bank (East) PSFS, N .A. v. DiVeronica Bros., Inc., 983 F.2d 551, 554 (3d Cir. 1993). To establish general jurisdiction, a plaintiff m ust “show significantly m ore than m ere m inim um contacts,” and that the defendant’s forum contacts are “continuous and substantial.” Gehling v. St. George’s Sch. of Med., Ltd., 773 F.2d 539, 541 (3d Cir. 1985). In this case, Plaintiff acknowledges that the Court does not have general jurisdiction over Kanoo. (Pl. Br., p. 9 n.1.) In contrast to general jurisdiction, the Court can exercise specific jurisdiction when the defendant purposely directs its activities at the forum , the litigation arises out of at least one of those activities, and the exercise of jurisdiction would “com port with fair play and substantial justice.” Burger King v. Rudzew icz, 471 U.S. 462, 463 (1985). Where, as here, no evidentiary hearing was held on the jurisdictional issue, “the plaintiff need only establish a prim a facie case of personal jurisdiction and the plaintiff is entitled to have [its] allegations taken as true and all factual disputes drawn 6 in [its] favor.” O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 20 0 7) (quoting Miller Yacht Sales, Inc. v. Sm ith, 384 F.3d 93, 97 (3d Cir. 20 0 4)). Establishing specific jurisdiction requires a three-part inquiry: whether there is purposeful availm ent—i.e., whether the defendant purposefully directed its activities at the forum; whether there is relatedness—i.e., whether the litigation arises out of or relates to at least one of the contacts; and, if the first two requirements are m et, whether the exercise of jurisdiction otherwise com ports with traditional notions of fair play and substantial justice. O’Connor, 496 F.3d at 317. In this case, Plaintiff has outlined a longstanding business relationship with Kanoo. Relevant to this litigation and in a light m ost favorable to Plaintiff, in Novem ber of 20 0 8, Kanoo, in Saudi Arabia, requested a quote from Plaintiff, in New J ersey, for certain turbine parts. After some telephone discussions between company representatives, on J une 7, 20 0 9 Kanoo sent Plaintiff a proposed letter of intent to purchase item s from Plaintiff, but at a lower price than Plaintiff was willing to accept. Plaintiff and Kanoo engaged in subsequent telephone and e-m ail exchanges. Ultim ately, Plaintiff did not receive the full paym ent that it determ ined it was entitled to from Kanoo and this lawsuit followed. 7 The Court finds Kanoo’s contact with New J ersey fortuitous, rather than as the result of a deliberate targeting of the forum. Therefore, there was no purposeful availm ent with New J ersey to form the basis for personal jurisdiction. Plaintiff’s unilateral choice of residence cannot serve as a basis for a nonresident defendant to be haled into court here. See Helicopteros N acionales de Colom bia, S.A. v. Hall, 466 U.S. 40 8, 417 (1984) (“[The] unilateral activity of another party or a third person is not an appropriate consideration when determ ining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.”). Instead, the “‘m inim um contacts’ analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.” W alden v. Fiore, 134 S. Ct. 1115, 1122 (20 14) (Finding “the plaintiff cannot be the only link between the defendant and the forum .”). “The mere existence of a contract is insufficient to establish m inim um contacts.” Budget Blinds, Inc. v. W hite, 536 F.3d 244, 261 (3d Cir. 20 0 8). Further, the record does not support a finding of relatedness; that is, this litigation does not arise out of or relate to contact with New J ersey. Kanoo’s representative, Ashfaq Ahm ed, traveled to the United States in 20 0 9 for purposes of attending an exhibition in Las Vegas, Nevada. (Second Ahm ed Decl. ¶ 9.) Before attending the exhibition, Ahm ed met two 8 of Plaintiff’s representatives at Plaintiff’s office in New J ersey. (Id. ¶¶ 9-11.) During this visit, the parties did not negotiate the purchase orders in dispute, nor did Ahm ed agree to adjust the pricing of the purchase orders. (Id. ¶¶ 11-12.) Business trips to a forum state unrelated to the m atter at hand are insufficient to confer specific personal jurisdiction. See, e.g., Allaham v. N addaf, 635 F. App’x 32, 41 (3d Cir. 20 15). Nor does the placing of purchase orders and subsequent rem ittance of paym ents sufficient to confer jurisdiction. See Merco, Inc. v. S. Cal. Edison Co., No. 0 6-5182, 20 0 7 WL 1217361 (D.N.J . Apr. 24, 20 0 7). Conclusion For these reasons as well as those discussed during oral argum ent, Defendant’s m otion to dism iss will be granted. An appropriate Order will be entered. Dated: March 19, 20 18 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
