174 F.R.D. 376 (E.D.Va. 1997), C. A. 97-556-A, Dee-K Enterprises Inc. v. Heveafil Sdn. Bhd.

Docket Nº:Civil Action 97-556-A.
Citation:174 F.R.D. 376
Opinion Judge:ELLIS, District Judge.
Party Name:DEE-K ENTERPRISES INC., etc., Plaintiffs, v. HEVEAFIL SDN. BHD., et al., Defendants.
Attorney:Joel Davidow, Sturgis M. Sobin, Joel W. Rogers, Ablondi, Foster, Sobin & Davidow, P.C., Washington, DC, Michael D. Hausfeld, Daniel A. Small, Paul T. Gallagher, Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Washington, DC, for Plaintiffs. Walter J. Spak, Anne D. Smith, Carolyn B. Lamm, Denise L. Di...
Case Date:July 23, 1997
Court:United States District Courts, 4th Circuit, Eastern District of Virginia
 
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Page 376

174 F.R.D. 376 (E.D.Va. 1997)

DEE-K ENTERPRISES INC., etc., Plaintiffs,

v.

HEVEAFIL SDN. BHD., et al., Defendants.

Civil Action No. 97-556-A.

United States District Court, E.D. Virginia, Alexandria Division.

July 23, 1997

Virginia corporation which was " end-user" of extruded rubber thread filed complaint against Malaysian, Indonesian and Thai companies that produce extruded rubber thread, and companies that resell and distribute product to " end-users" in the United States, seeking to recover damages allegedly caused by defendants' conspiracy to violate the Sherman Act by fixing prices and restraining competition for sales of extruded rubber thread. Malaysian producers and Indonesian company moved to dismiss complaint for insufficiency of service of process. The District Court, Ellis, J., held that: (1) civil procedure rule governing service of process on foreign corporate defendants authorizes service in the foreign country by " any form of mail requiring a signed receipt . . . addressed and dispatched by the clerk of the court to the party being served," provided such service does not expressly violate the law of the country in which service is attempted, even though such service is not prescribed by the laws of the foreign country, as mode of service of process that is not prescribed by foreign law is not " prohibited" by that law within meaning of rule, and (2) service upon Indonesian and Malaysian corporate defendants in Indonesia and Malaysia by courier service did not violate laws of Indonesia or Malaysia, and thus was valid service under civil procedure rule.

Motions denied.

Page 377

Joel Davidow, Sturgis M. Sobin, Joel W. Rogers, Ablondi, Foster, Sobin & Davidow, P.C., Washington, DC, Michael D. Hausfeld, Daniel A. Small, Paul T. Gallagher, Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Washington, DC, for Plaintiffs.

Walter J. Spak, Anne D. Smith, Carolyn B. Lamm, Denise L. Diáz, George L. Paul, Francis A. Vasquez, Jr., White & Case, Washington, DC, for Defendants Heveafil Sdn. Bhd., Filmax Sdn. Bhd., Rubfil Sdn. Bhd., Rubberflex Sdn. Bhd., Filati Lastex Sdn. Bhd., Filati Lastes Elastofibre USA, Inc., Filati Corporation of Rhode Island, Filati Corporation of North Carolina, Rubfil USA, Inc., and P.T. Bakrie Rubber Industry.

David M. Foster, Joseph T. Small, Jr., Christine P. Hsu, Fulbright & Jaworski L.L.P., Washington, DC, for Defendant JPS Elastomerics Corp.

James A. West, James A. West, P.C., Houston, TX, for Defendant Consortium Intern. Corp.

MEMORANDUM OPINION

ELLIS, District Judge.

Plaintiff in this international antitrust case elected to serve Indonesian and Malaysian corporate defendants in their respective countries by a courier service. In both Malaysia and Indonesia, this is not one of the modes of serving process prescribed by law. Thus, a threshold question presented is whether a mode of service of process that is not prescribed by foreign law is " prohibited" by that law within the meaning of Rule 4(f)(2)(C).

I.

On April 17, 1997, plaintiff Dee-K Enterprises Inc. (" Dee-K" ) filed a complaint, on behalf of itself and parties similarly situated, seeking to recover damages allegedly caused by defendants' conspiracy to violate § 1 of the Sherman Act, 15 U.S. C. § 1. Dee-K is a Virginia corporation that is an " end-user" of extruded rubber thread.1 In other words, Dee-K purchases extruded rubber thread for use in products that it manufactures, rather than for resale. Defendants are Malaysian, Indonesian and Thai companies that produce extruded rubber thread, and the companies that resell and distribute this product to " end-users" in the United States. Collectively, defendants supply the majority of extruded rubber thread in the United States.

The complaint alleges a conspiracy among the producers and distributors of extruded rubber thread to fix prices and to restrain

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competition for sales of that product throughout the world, including the United States. Treble damages and an injunction are sought. According to the complaint, the Malaysian producers of rubber thread met in 1992, and agreed (i) to raise rubber thread prices worldwide, (ii) to restrict rivalry for customers, and (iii) to discipline employees who authorized discounted prices or otherwise violated the terms of the anti-competitive conspiracy. Thereafter, in 1994-95, the anti-competitive conspiracy allegedly was extended to include Indonesian and Thai producers of extruded rubber thread and their respective distributors.2

Defendants Filmax Sdn. Bhd., Rubfil Sdn. Bhd., Rubberflex Sdn. Bhd., Filati Lastex Sdn. Bhd., (" the Malaysian producers" ), and defendant PT. Bakrie Rubber Industry (" BRI" ), each received a copy of the summons and complaint via DHL courier service. The Malaysian producers received the summons and complaint at corporate locations in Malaysian. BRI, an Indonesian company, received the summons and complaint in Jakarta, Indonesia. Both the Malaysian producers and BRI now move to dismiss the complaint for insufficiency of service of process, pursuant to Rule 12(b)(5), Fed.R.Civ.P. Thus, the question presented is whether the delivery of the complaint and summons to the Malaysian producers and BRI via DHL courier is sufficient service of process.

II.

It is well-established that personal jurisdiction over a defendant is a pre-requisite to maintaining an action against that defendant. See Federal Insurance Co. v. Lake Shore, Inc., 886 F.2d 654, 657 (4th Cir.1989). And for a federal court to obtain personal jurisdiction over a defendant, the defendant must first be properly served with a summons and complaint, pursuant to Rule 4, Fed.R.Civ.P. See Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 409-10, 98 L.Ed.2d 415 (1987). Thus, analysis here properly focuses on Rule 4(h), the federal provision for service of process upon corporations and associations.

Rule 4(h)(2) establishes the appropriate forms of service for the commencement of a suit against a foreign corporate defendant in federal court. 3 Specifically, Rule 4(h)(2) provides that where service is effected " in a place not within any judicial district of the United States", that service must be effected

in any manner prescribed for individuals by subdivision (f) except personal delivery as provided in paragraph (2)(C)(i) thereof.

Thus, with the exception of personal service, subsection (h) incorporates subsection (f), the provision of...

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