SWIFT v. PANDEY et al

Filing 136

OPINION. Signed by Judge Jose L. Linares on 03/22/2016. (ek)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ROBERT SWIFT,

Civil Action No.: 13-650 (JLL)
Plaintiff,

OPINION

v.

RAMESH PANDEY et al.,
Defendants.

LINARES, District Judge.

This matter comes before the Court on the second motion of Pro Se Plaintiff Robert Swift
for default judgment as to Defendant Xechem (India) Pvt. Ltd. pursuant to Federal Rule of Civil
Procedure 55. (ECF No. 128.) The Court has considered submissions and decides this matter
without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons
set forth below, the Court denies the motion.

BACKGROUND

In this action Plaintiff alleges that, as a result of the Defendants' actions to cover up the
true ownership ofXechem (India) Pvt. Ltd., Xechem lent money to Xechem (India) Pvt. Ltd. that
it otherwise would not have, and that the Defendants used the money for their own personal gain.
On January 31, 2013, Plaintiff filed a Complaint against Defendants Abhilasha Pandey, Bhuwan
Pandey, and Ramesh Pandey. (ECF No. 1, Compl.) On March 28, 2013, Defendants Bhuwan
Pandey and Ramesh Pandey filed a Motion to Dismiss Plaintiffs Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). (ECF No. 9.) On July 1, 2013, the Court granted Defendants'

Motion to Dismiss, and dismissed Counts Six and Seven with prejudice and the remaining Counts
without prejudice, and terminated the civil case. (ECF No. 16.)
On August 5, 2013, Plaintiff filed an Amended Complaint against Defendants Abhilasha
Pandey, Bhuwan Pandey, Ramesh Pandey, and Xechem (India) Pvt. Ltd. (ECF No. 17.) On
August
13,

2013, the Court issued an Order reopening the civil case. (ECF No. 19.) On September
3 Defendants Bhuwan Pandey and Ramesh Pandey filed a Motion to Dismiss Plaintiffs

Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 20.) On
November 13, 2013, the Court granted the Motion to Dismiss and dismissed Counts Five, Ten,
and Fifteen of the Amended Complaint with prejudice, and the remaining Counts without
prejudice. (ECF No. 27.) Additionally, the Court directed Plaintiff to file a Second Amended
Complaint by December 13, 2015 to cure the pleading deficiencies identified. (Id.)
On December 13, 2015, Plaintiff filed a Second Amended Complaint. (ECF No. 28.) On
January 24, 2014, Defendants Bhuwan Pandey and Ramesh Pandey filed a Motion to Dismiss
Plaintiffs Second Amended Complaint. (ECF No. 36.) On April 30, 2014, the Court granted in
part and denied in part Defendants' Motion to Dismiss. (ECF No. 45, Order.) Specifically, the
Court dismissed the tort-based claims as barred by the applicable statute oflimitations, but allowed
the claims for unjust enrichment against Bhuwan Pandey, Ramesh Pandey, and Xechem India to
proceed. (See Apr. 30, 2014 Op. at 19-21.) On May 30, 2014, Plaintiff moved for reconsideration
of this Court's Opinion and Order granting in part and denying in part Defendants' Motion to
Dismiss Plaintiffs Second Amended Complaint. (ECF No. 50.) On July 8, 2014, this Court
denied Plaintiffs Motion for Reconsideration. (ECF No. 55.)
On March 27, 2015, pursuant to Court Order, Plaintiff filed a Third Amended Complaint
against Bhuwan Pandey, Ramesh Pandey, and Xechem India alleging quantum meruit (Counts

2

One, Two, and Three) and unjust enrichment (Counts Four, Five, and Six). (ECF No. 85.) On
May 1

2015, Defendants Bhuwan Pandey and Ramesh Pandey filed a Motion to Dismiss

Plaintiff's Third Amended Complaint. (ECF No. 87.) On September 8, 2015, the Court denied
the motion to dismiss. (ECF No. 94.)
On October 5, 2015, Plaintiff filed a request for default as to Defendant Xechem (India)
Pvt.

which the Clerk granted on October 7, 2015. (ECF No. 96.)
On November 9, 2015, Plaintiff filed a motion for default judgment as to Defendant

Xechem (India) Pvt. Ltd. (ECF No. 114.) On November 30, 2015, the Court denied the motion
for default judgment for failure to establish sufficient proof of service. (ECF No. 121.) On
December 14, 2015, United States Magistrate Judge Joseph A. Dickson granted Plaintiffs request
to file a renewed motion for default judgment, and extended the deadline to file on February 17,
2016.

Nos. 123, 127.)
February 24, 2016, Plaintiff filed the instant second Motion for Default Judgment as to

Xechem (India) Pvt. Ltd. pursuant to Federal Rule of Civil Procedure 55(b)(l). (ECF No. 128.)
Plaintiff seeks judgment against Xechem in the amount of $11,184,552. (Id.) Plaintiff filed an
affidavit in support of the motion. (ECF No. 128-1 ("Aff.").) The motion is unopposed.

LEGAL STANDARD
"Before granting a default judgment, the Court must determine (1) whether there is
sufficient proof of service, (2) whether a sufficient cause of action was stated, and (3) whether
default judgment is proper." Teamsters Health & Welfare Fund of Phi/a. & Vicinity v. Dubin
Paper

, No. 11-7137, 2012 WL 3018062, at *2 (D.N.J. July 24, 2012) (internal citations

omitted). "[I]f a default judgment had been entered when there had not been proper service, the

3

judgment is, a fortiori, void, and should be vacated." Petrucelli v. Bohringer & Ratzinger, 46 F.3d
1298, 1304 (3d Cir. 1995).

Furthermore, "[a] default judgment entered without personal

jurisdiction over the defendant is void." Ramada Worldwide Inc. v. Courtney Hotels USA, LLC,
No. 11-896, 2012 WL 924385, at *3 (D.N.J. Mar. 19, 2012) (citation omitted).

ANALYSIS
A. Service of Process

With respect to the first prong, the Federal Rules of Civil Procedure states the following
with respect to serving a corporation:
Unless federal law provides otherwise or the defendant's waiver has
been filed, a ... foreign corporation ... must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(l) for serving an
individual; or
(B) by delivering a copy of the summons and of the
complaint to an officer, a managing or general agent, or
any other agent authorized by appointment or by law to
receive service of process and-if the agent is one
authorized by statute and the statute so requires-by
also mailing a copy of each to the defendant; or
(2) at a place not within any judicial district of the United States, in
any manner prescribed by Rule 4(f) for serving an individual,
except personal delivery under (f)(2)(C)(i).
Fed R. Civ. P. 4(h). Rule 4(f) allows for service "by any internationally agreed means of service
that is reasonably calculated to give notice, such as those authorized by the Hague Convention on

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the Service Abroad of Judicial and Extrajudicial Documents." (hereinafter the "Hague
Convention" 1). Fed. R. Civ. P. 4(t)(l).
Here, Plaintiffs affidavit states as follows:
2. On November 26, 2014 a Summons and Complaint were sent to
Central Authority in India pursuant to the Hague Convention (See
Docket, 11/26/2014). Plaintiff attempted to serve Xechem (India)
Pvt. Ltd through the Central Authority in India pursuant to the
Hague Convention at their last known address and the address listed
in the records of the Ministry of Corporate Affairs for India, but
Xechem (India) Pvt, Ltd. was not found at either address (Exhibit I).
Xechem (India) Pvt, Ltd Company Status is listed as Dormant in the
Ministry of Corporate Affairs records (Exhibit 2).
3. Pursuant to Rule 4 (h), Plaintiff served an Officer and Director of
Xechem (India) Pvt, Ltd.; Ramesh Pandey. The Ministry of
Corporate Affairs for India lists Ramesh Pandey as the point of
contact for Xechem (India) Pvt, Ltd.
4. Ramesh Pandey is also a Defendant in this action and Ramesh
authorized the Court to send documents in this case to his email
address: [e-mail].
5. On July 6, 2015, two copies of the Third Amended Complaint and
Waiver of Service were emailed to Ramesh Pandey at
[e-mail] and mailed certified (Exhibit 3) to Ramesh
Pandey's condominium address at 30 South Adelade Ave, #8M,
Highland Park, NJ, 08904.
5. [sic] More than sixty (60) days have elapsed since the Ramesh
Pandey was served for Xechem (India) Pvt. Ltd and Xechem (India)
Pvt. Ltd has failed to plead or otherwise defend as provided by the
Federal Rules of Civil Procedure, nor has Xechem (India) Pvt. Ltd
sought additional time within which to respond.

1
The Hague Convention, adopted in 1965, had as its purpose the creation of an "appropriate means to ensure that
judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient
time." See Hague Convention, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163. The Hague
Convention was intended to "provide a simpler way to serve process abroad, to assure that defendants sued in foreign
jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad." Volkswagenwerk
Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988) (emphasis added). "The Hague Convention authorizes several
different mechanisms for effectuating service of process. The primary vehicle, established in Articles 2 through 7,
requires each participating country to set up a Central Authority to monitor and ensure proper service." EOI Corp. v.
Med. Mktg. Ltd., 172 F.R.D. 133, 136 (D.N.J. 1997).

5

(Aff)
Plaintiff has failed to establish sufficient proof of service on Xechem (India) Pvt. Ltd. First,
Plaintiffs affidavit states that Xechem (India) Pvt. Ltd. was not served in India. He does not argue
(or provide legal support) that such attempt alone is sufficient to satisfy his service requirement.
In other words, Plaintiff does not explain how sending service to the Central Authority is sufficient
when the foreign defendant is not actually served. Second, Plaintiff has not shown why alternate
service on Xechem (India) Pvt. Ltd. via Ramesh Pandey is otherwise appropriate.

Plaintiff

provides no basis (including citation to the Rules or other legal support) for why service via
certified mail and email on Ramesh Pandey-the alleged "point of contact" for Xechem (India)
Pvt. Ltd., who in this action entered an appearance on behalf of himself personally-was an
appropriate alternate method of service on Xechem (India) Pvt. Ltd. under the Rules. It is not an
alternate method that was approved by the Court. (See ECF No 69 (denying without prejudice
request for alternate service)). 2 And even though Ramesh Pandey submitted a "Consent &
Registration Fonn to Receive Documents Electronically," that form explicitly states that
"[ d]ocuments that are not permitted to be served electronically are pleadings that are to be served
with process under Fed. R. Civ. P. 4." (ECF No. 60.) Accordingly, the second motion for default
judgment as to Defendant Xechem (India) Pvt. Ltd. shall be denied without prejudice for failure
to establish sufficient service of process.
B. Personal Jurisdiction
It is unclear whether the Court has personal jurisdiction over Xechem (India) Pvt. Ltd. As
noted, "[a] default judgment entered without personal jurisdiction over the defendant is void."

2

Furthermore, "[s]ervice by mail, alone, however, is insufficient to effectuate service in accordance with Rule 4(h).
The rule clearly requires personal delivery ...." See Mettle v. First Union Nat. Bank, 279 F. Supp. 2d 598, 602
(D.N.J. 2003)).
6

Ramada Worldwide Inc. v. Courtney Hotels USA, LLC, No. 11-896, 2012 WL 924385, at *3

(D.N.J. Mar. 19, 2012) (citation omitted).
In general, courts may not sua sponte dismiss complaints for lack of
personal jurisdiction. When a plaintiff seeks the entry of a default
judgment, however, this principle is turned on its head as courts
have an affirmative obligation to ensure that personal jurisdiction is
proper over each defendant against whom such a judgment is
sought.
Allaham v. Naddaf, No. 13-3564, 2015 WL 3421464, at *l (E.D. Pa. May 28, 2015) ajf'd, No. 15-

2575,

15 WL 9241249 (3d Cir. Dec. 17, 2015).
district court sitting in New Jersey may exercise personal jurisdiction over a non-resident

defendant if the defendant has "certain minimum contacts with [New Jersey] such that the
maintenance of the suit does not offend traditional notions of fair play and substantial justice."
Henry Heide, Inc. v. WRH Prods. Co., Inc., 766 F.2d 105, 108 (3d Cir. 1985) (quoting Int'! Shoe
Co.

Washington, 326 U.S. 310, 316 (1945)). In general, "[j]urisdiction is proper ... where the

contacts proximately result from actions by the defendant himself that create a 'substantial
connection' with the forum State." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)
(citing McGee v. Int'! Life Ins. Co., 355 U.S. 220, 223 (1957))(emphasis in original). Furthermore,
the Hague Convention is not a means of asserting personal jurisdiction over a foreign defendant.
See DeJames v. Magnificence Carriers, Inc., 654 F .2d 280, 289 (3d Cir. 1981) ("[W]e do not

believe that the [Hague Convention] in any way affects a state's chosen limits on the jurisdictional
reach of its courts."); Shenouda v. Mehanna, 203 F.R.D. 166, 171(D.N.J.2001) (noting that "the
[Hague] Convention does not confer personal jurisdiction").
Here, the Third Amended Complaint alleges that Xechem (India) Pvt. Ltd. is based in New
Delhi, India and that it kept the loan at issue in banks in India. (ECF No. 85 at 3-4, iii! 10, 16.)
Based on the submissions filed by Plaintiff in support of the instant motion, the Court is unable to
7

determine whether it has personal jurisdiction over Xechem (India) Pvt. Ltd. Accordingly, the
Court denies the second Motion for Default Judgment for this reason as well. 3
C. Amount of Judgment

Finally, Plaintiff has failed to support his claim for damages. The underlying claim is based
on a loan of $977,394 to Xechem (India) Pvt. Ltd. (see Third Am. Compl.

~

14), but Plaintiff is

seeking over $11 million after applying interest (see ECF No. 128, Ex. 1). Plaintiff fails to provide
evidentiary support for how he arrived at this amount, and the document purporting to show the
amount owed appears to be a spreadsheet generated by Plaintiff. (Id.) This is insufficient. See

Blythe v. Marauder Corp., 2010 WL 3609789, at *2 (D.N.J. Sept. 16, 2010) (denying motion for
default judgment without prejudice in part because "the motion for default judgment fails to
adequately detail the basis for the calculation of the damages sought.")
Plaintiff should be aware that if this Court were to grant default judgment against Xechem
(India) Pvt. Ltd. in due course as to liability, the Court would require more than the current
submission to properly determine the amount of damages. See Fed. R. Civ. P. 55(b )(2) ("The court
may conduct hearings ... [if] it needs to ... determine the amount of damages [or] establish the
truth of any allegation by evidence[.]").

CONCLUSION

For the reasons above, Plaintiffs second motion for default judgment as to Xechem (India)
Pvt. Ltd. (ECF No. 128) is denied without prejudice. If Plaintiff is to ultimately file a third motion
for default judgment as to Defendant Xechem (India) Pvt. Ltd., he must include a brief in

3

"Once a proper jurisdictional objection is raised, the plaintiff bears the burden of proving the facts necessary to
establish the minimum contacts the Constitution requires." Grand Entm 't Grp., Ltd. v. Star Media Sales, Inc., 988
F.2d 476, 482 (3d Cir. 1993) (citation omitted).
8

accordance with Local Civil Rules 7 .1 and 7.2 to address the issues identified in this Opinion. Any
amended filing/additional submission, particularly with respect to service, must be supported by
citation to applicable rules or case law supporting Plaintiffs position.

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