930 F.2d 253 (2nd Cir. 1991), 1163, National Development Co. v. Triad Holding Corp.

Docket Nº:1163, Docket 90-7906.
Citation:930 F.2d 253
Party Name:NATIONAL DEVELOPMENT COMPANY, Plaintiff-Appellee, v. TRIAD HOLDING CORPORATION; Adnan Khashoggi; Triad Financial Establishment; Triad America Corporation; Triad International Marketing; Akorp, N.V.; Ekorp, N.V.; A.K. Holdings, S.A.; A.K. Holdings Ltd.; Triad Foundation; Triad Condas; Edgington Oil Company; Handlingair Ltd.; Uni-Triad Enterprises; J
Case Date:April 15, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 253

930 F.2d 253 (2nd Cir. 1991)

NATIONAL DEVELOPMENT COMPANY, Plaintiff-Appellee,

v.

TRIAD HOLDING CORPORATION; Adnan Khashoggi; Triad

Financial Establishment; Triad America Corporation; Triad

International Marketing; Akorp, N.V.; Ekorp, N.V.; A.K.

Holdings, S.A.; A.K. Holdings Ltd.; Triad Foundation;

Triad Condas; Edgington Oil Company; Handlingair Ltd.;

Uni-Triad Enterprises; John Doe Khashoggi Entities 1-50, Defendants,

Adnan Khashoggi, Defendant-Appellant.

No. 1163, Docket 90-7906.

United States Court of Appeals, Second Circuit

April 15, 1991

Argued March 5, 1991.

Page 254

Steven M. Bierman, New York City (Mark N. Parry, Sidley & Austin, New York City, of counsel), for defendant-appellant.

Fredrick E. Sherman, New York City (Thomas L. Abrams, Jones, Day, Reavis & Pogue, New York City, of counsel), for plaintiff-appellee.

Before KEARSE, PRATT and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

For more than a half-century, the Federal Rules of Civil Procedure have permitted service upon an individual by leaving a summons and complaint "at the individual's dwelling house or usual place of abode." For a half-century before that, Equity Rule 13 had the same provision. With approximately 1.16 billion passengers annually engaging in international airline travel, see Washington Times, Jan. 1, 1991, at C1 col. 1, and an estimated five million people with second homes in the United States, see Stern, Steal This House, Forbes, Oct. 1, 1990, at 81, determining a person's "dwelling house or usual place of abode" is no longer as easy as in those early days of yesteryear.

We ponder this problem upon review of an order of the United States District Court for the Southern District of New York (Milton Pollack, District Judge,) refusing, under Fed.R.Civ.P. 60(b)(4), to vacate a default judgment entered against defendant-appellant Adnan Khashoggi ("Khashoggi"). In essence, Khashoggi argues that, although he has numerous residences world-wide, his "dwelling house or usual place of abode" is in Saudi Arabia and, absent personal delivery, service of process pursuant to Rule 4(d)(1) is proper only at his compound there. Therefore, he concludes that a purported service at his apartment at the Olympic Tower in New York was void and conferred no jurisdiction. We disagree and affirm the order of the district court.

BACKGROUND

Plaintiff-appellee National Development Company ("NDC") is a corporation wholly-owned by the Republic of the Philippines. The dispute between NDC and Khashoggi arose from the dissolution of Triad Asia, Ltd. ("Triad Asia"), a joint venture formed by NDC and Triad Holding Corporation

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("Triad Holding"), a company controlled by Khashoggi. NDC claims that Khashoggi converted approximately $3.5 million of Triad Asia's assets that should have been distributed to NDC when the joint venture was dissolved.

On August 25, 1986, pursuant to an arbitration clause in a Memorandum of Agreement between NDC and Triad Holding, NDC delivered a Request for Arbitration to the International Chamber of Commerce ("ICC") and sent a copy of the request, along with a Notice of Commencement of Arbitration, by registered or certified mail to each of the defendants, including Khashoggi. The Memorandum of Agreement provided that "any dispute or difference between the parties" concerning the joint venture be "finally settled under the Rules of Conciliation and Arbitration of the [ICC]." Return mail receipts were received from each of the defendants including Khashoggi. The ICC subsequently sent copies of the Request for Arbitration to the defendants on two occasions and received return mail receipts from each defendant, including Khashoggi, for both mailings. Neither Khashoggi nor any of the other defendants responded. NDC then commenced this action seeking to compel Khashoggi to arbitrate.

It is the service of the summons and complaint on Khashoggi on December 22, 1986 that forms the basis of this appeal. On that day, NDC handed a copy of the summons and complaint to Aurora...

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