Case of the Day: Petmas Investors v. Sameiet Holbergs Gate 19

The case of the day is Petmas Investors Ltd. v. Sameiet Holbergs Gate 19 (D.N.J. 2014). Sameiet Holdbergs operated a business in Oslo. In 2008, a renovation in the building damaged Sameiet’s space, and Sameiet sued Petmas Investors, which it claimed was responsible for the damage, in a Norwegian court. Petmas, a US firm, asserted that Sameiet had not properly served it with process under the Hague Service Convention. It brought an action in the US District Court seeking to quash the service in the Norwegian case or to order the Norwegian case dismissed.

The judge didn’t wait for an answer but almost immediately ordered Petmas to show cause why the case should not be dismissed for want of jurisdiction, and the judge proceeded to dismiss the action. This was clearly correct. In Germany and perhaps in other countries, a party can seek judicial review of the propriety of a request for service directed to the central authority. But there is no such remedy in the United States, and in any event it’s not clear that the service was made through the US central authority rather than through a private process server.

The case really stands out to me for the very poor quality of lawyering on behalf of Petmas. Petmas submitted two declarations, one from a Norwegian lawyer and one from an American lawyer, that are really jaw-dropping. The Norwegian lawyer’s declaration begins by baldly asserting that Norway’s judiciary system “has not sufficiently evolved,” whatever that means, and he later impugns the impartiality of the Norwegian magistrate hearing the case. The US lawyer’s declaration begins: “I am an attorney at law duly admitted and qualified to practice in the Federal Courts of the United Stats of America.” Really? All of them? Things only go downhill from there. The declaration states: “It is important to consider that it is US law that prevails over the sufficiency of service of process effected on its territory under Hague Convention (or other means) service. US courts are solely competent to determine the sufficiency of service..” This, of course, is precisely backwards—the courts of Norway are competent, in the first instance, to determine whether service in a Norwegian action was sufficient under Norwegian law.

The bottom line is that it is for the court that is hearing the action to hear and decide objections to the sufficiency service of process. The US courts can have a roll, but only when it comes time to consider challenges to the recognition and enforcement of an eventual Norwegian judgment. The other bottom line is that lawyers should either educate themselves about service of process in cross-border cases or else get help from competent sources.

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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