AngioDynamics, Inc. v. Biolitec AG et al

Filing 47

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: Plaintiffs Motion for Order Authorizing Substituted Service Under Rule 4(f) and for an Award of Costs (Dkt. No. 30 ) is hereby ALLOWED IN PART. Under these circumstances, the court or ders that Plaintiff may make service upon Defendants Neuberger and Biomed through defense counsel and through the parties e-mail address. In allowing Plaintiffs motion, the court does not wish to suggest that the service effectuated up to now was ine ffective. The order permitting substituted service is simply intended to insure no ambiguity or future controversy with regard to service of process. Defendants Biomed and Neuberger will now file their answer or responsive pleadings within the time l imits set by the civil rules. If additional time is desired, a motion requesting an extension should be filed with an indication of assent, if any. Insofar as Plaintiffs motion also seeks an award of costs, the motion is DENIED IN PART, without prejudice. If Plaintiff is ultimately successful in this litigation, itmay apply for these costs as part of the Bill of Costs at that time. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

ANGIODYNAMICS, INC.,
Plaintiff
v.
BIOLITEC, INC., ET AL.,
Defendants

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C.A. NO. 09-cv-30181-MAP

MEMORANDUM AND ORDER RE:
CROSS-MOTION FOR ORDER AUTHORIZING
SUBSTITUTED SERVICE UNDER RULE 4(f)
AND FOR AN AWARD OF COSTS
(Dkt. No. 30)
May 17, 2011
PONSOR, D.J.
In this case, Plaintiff AngioDynamics, Inc., has sued
three corporate defendants and one individual defendant for
damages arising out of a supply and distribution agreement
between Plaintiff and Defendant Biolitec, Inc.

Two

corporate Defendants, Biolitec AG and Biolitec, Inc., have
been served.1
1

The two other defendants are a different

These two defendants have moved to dismiss for lack of
personal jurisdiction and for failure to state a claim (Dkt.
No. 13). Their motion was heard on February 14, 2011, and
is currently under advisement. The court was informed at
the February 14 hearing that a pending Motion for Summary
Judgment in parallel New York litigation may render the
motion to dismiss moot, and the court has been holding off
on that motion pending a ruling in the New York case.
Counsel should inform this court immediately if the New York
court should act.

matter.
Despite diligent efforts and substantial expense,
Plaintiff has had difficulty serving the third corporate
defendant, Biomed Technology Holdings, Ltd. (“Biomed”) and
the individual defendant Wolfgang Neuberger, an
international businessman who apparently maintains multiple
residences in various countries throughout the world.

It is

undisputed that service upon Defendant Neuberger would also
be adequate to constitute service upon Defendant Biomed, of
which he is sole owner.

It is further undisputed that

Defendant Neuberger is fully aware of this litigation.
Indeed, he has submitted an affidavit in support of the
pending Motion to Dismiss filed by Defendants Biolitec AG
and Biolitec, Inc.

(See Dkt. No. 15, Neuberger Decl.)

Recently, according to counsel for Plaintiff, Plaintiff
finally succeeded in effectuating personal service upon
Defendant Neuberger when a hired process server left a copy
of the summons and complaint at his residence in Dubai.
This occurred after Plaintiff’s counsel made extensive and
costly (though ultimately unsuccessful) efforts to serve
Defendants Neuberger and Biomed in Germany, Malaysia, and
(previously via mail) Dubai.

Nonetheless, at the hearing on

May 10, 2011, Defendants’ counsel declined to concede that
the recent service of process in Dubai was effective.
2

The record demonstrates, overwhelmingly and in detail,
that Plaintiff’s difficulties with service of process arise
from the evasive conduct of Defendant Neuberger and, to some
extent, from the possibly inadvertent but nevertheless
misleading statements made by his counsel.

Under these

circumstances, it is appropriate for the court to allow
substituted service.

See, e.g., Rio Props., Inc. v. Rio

Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002)
(permitting substituted service in the case of an “elusive
international defendant striving to evade service of process
. . . .”).
Plaintiff’s Motion for Order Authorizing Substituted
Service Under Rule 4(f) and for an Award of Costs (Dkt. No.
30) is hereby ALLOWED IN PART.

Under these circumstances,

the court orders that Plaintiff may make service upon
Defendants Neuberger and Biomed through defense counsel and
through the parties’ e-mail address.

In allowing

Plaintiff’s motion, the court does not wish to suggest that
the service effectuated up to now was ineffective.

The

order permitting substituted service is simply intended to
insure no ambiguity or future controversy with regard to
service of process.

Defendants Biomed and Neuberger will

now file their answer or responsive pleadings within the
time limits set by the civil rules.
3

If additional time is

desired, a motion requesting an extension should be filed
with an indication of assent, if any.
Insofar as Plaintiff’s motion also seeks an award of
costs, the motion is DENIED IN PART, without prejudice.
If Plaintiff is ultimately successful in this litigation, it
may apply for these costs as part of the Bill of Costs at
that time.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

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