Case of the Day: Honig v. Cardis Enterprises
Posted on November 11, 2016
The case of the day is Honig v. Cardis Enterprises International N.V. (E.D.N.Y. 2016). Edward Honig sued Cardis Enterprises International N.V.,and others for securities fraud. Cardis was a Curaçao company. It moved to dismiss for insufficient service of process.
Honig had served Cardis by mail. The court had difficult deciding whether, as Cardis claimed, Curaçao was a party to the Hague Service Convention. I am not certain, but I believe the answer is no, the Netherlands has not extended the application of the Convention to Curaçao. The Declaration of October 18, 2010 states that the “Kingdom [of the Netherlands] consists of four parts: the Netherlands, Aruba, Curaçao and Sint Maarten.” The Netherlands extended application of the Convention to Aruba in 1986, but it has not yet extended application to the Netherland Antilles (which, prior to 2010, included Curaçao, Sint Maarten, Bonaire, Sint Eustatius and Saba).
The court, though, came to the opposite conclusion—perhaps an understandable mistake since it appears from the decision that the parties didn’t adequately brief the issue. The court went on to hold, in line with Second Circuit authority but contrary to the Letters Blogatory preferred position, held that the Convention affirmatively authorized service by mail in Curaçao without regard to FRCP 4, since the Netherlands had not objected to service by mail. The preferred view is that Article 10 permits but does not authorize service by mail, so that it is still necessary to find a basis for service by mail in the law of the forum. This is also the view of Paragraph 277 of the Practical Handbook (4th ed.).