Personal Jurisdiction. Hague Convention. Forum Selection Clause. New York court holds that service by mail upon foreign defendant residing in Italy fails to meet requirements under the Hague Convention
Defendant Fuzzi S.P.A., a women's clothing designer and manufacturer with its principal place of business in Rimini, Italy, entered into an agreement with Plaintiff M.B.S. Moda, Inc., under which Plaintiff agreed to serve as Defendant's sales representative in New York and other states in exchange for twelve percent sales commissions. Plaintiff brought suit in New York for unpaid commissions totaling $44,542.42. Plaintiff attempted service on Defendant in Italy by Federal Express and by regular mail. Defendant moved to dismiss Plaintiff's complaint for lack of personal jurisdiction and on inconvenient forum grounds.
The court granted Defendant's motion to dismiss the complaint for lack of personal jurisdiction because Plaintiff's attempt at service by Federal Express and mail did not comport with the requirements of the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the "Hague Convention"), as interpreted by the binding authority in New York. Under Article 10(a) of the Hague Convention, the Convention "shall not interfere with . . . freedom to send judicial documents by postal channels directly to persons abroad," provided the destination country does not object.
In New York, a split of authority exists among the departments of the Appellate Division regarding the adequacy of service by mail under this provision. Although the Second and Fourth Departments express the view that service by mail is permissible, the First and Third Departments interpret Article 10(a) as pertaining to the forwarding of informational material, not the service of court documents, based on the use of the term "send" as opposed to the term "service," which is used elsewhere throughout the treaty. Thus, under the controlling case law of the First Department, the court dismissed the complaint for lack of personal jurisdiction due to improper service by mail.
Further, the court held that even if personal jurisdiction over Defendant was properly established, the case had to be dismissed pursuant to the forum selection clause in the parties' agreement, which conferred exclusive jurisdiction to the courts of Rimini, Italy. Plaintiff failed to show that the enforcement of the forum selection clause was unreasonable or unjust, depriving it of its day in court.