Case of the Day: Mertik Maxitrol GmbH v. Honeywell Technologies

The case of the day is Mertik Maxitrol GmbH v. Honeywell Technologies Sarl (E.D. Mich. 2011). Mertik sued Honeywell International and two of its subsidiaries: its Swiss subsidiary, Honeywell Technologies Sarl, and its Dutch subsidiary, Honeywell B.V. Mertik sought to serve the two foreign firms under the Hague Convention through the appropriate central authorities, and after the central authorities reported that service had been effected, Mertik sought entry of default. The clerk entered the defaults, and Mertik moved for default judgment. The subsidiaries moved to set aside the defaults.

The Swiss central authority’s certificate indicated that service had been made “by delivery to the addressee (by post), who accepted it voluntarily.” It appears from the request for service of process (although it is uncertain) that Mertik actually requested this method of service. This is unfortunate. The Swiss subsidiary argued that the postal address on the request was incorrect, and so there was plenty of room for the subsidiary to argue that the documents had been misaddressed (the request did not give the full postal address for the subsidiary, but rather, gave only the city name and postal code, making it difficult to figure out to whom the central authority mailed it). It seems to me it would have been better to request service under Article 5(1), i.e., service in accordance with the laws of Switzerland, and then leaving it to the Swiss central authority to make service using the methods appropriate under its own law. In my view there is less room to question a central authority’s certification when the central authority says it has made service in accordance with its own law.

The Dutch central authority’s certificate is less clear. Mertik clearly requested service in the Netherlands under Article 5(1), and if Google Translate isn’t letting me down, the Dutch Central Authority certified that it served the documents in accordance with Dutch law. I do not think the validity of the service should be open to challenge where the Central Authority makes such a certification, except in extreme cases. The subsidiary argued that the recipient of the documents was a security guard who works for a contractor, not an employee, but the validity of the service under Dutch law should be left, in my view, to the Dutch central authority. This is similar to the argument I made in the discussion of the Fish & Richardson case, the case of the day from August 23.

The court, however, did not see it that way, and it granted the defendants’ motions to set aside the stays. I think the case was probably rightly decided with respect to the Swiss subsidiary but probably wrongly decided with respect to the Dutch subsidiary.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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