ADAM TECHNOLOGIES LLC v. WELLSHIN TECHNOLGY CO. LTD. et al
Filing
37
OPINION. Signed by Judge John Michael Vazquez on 8/12/2019. (vm, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ADAM TECHNOLOGIES LLC,
Plaintft
Civil Action No. 18-cv-10513
OPINION
WELL SHIN TECHNOLOGY CO., LTD.;
DONGGUAN WELL SHIN ELECTRONIC
PRODUCTS CO., LTD.; WELL SHIN USA;
and XYZ Companies 14,
Defendants.
John Michael Vazguez, U.S.D.J.
This matter comes before the Court on the motion to dismiss filed by Defendants Vell Shin
Technology Co., Ltd. (“Well Shin Taiwan”); Well Shin Electronics Products Co., Ltd. (“Dongguan
Well Shin”); and Conntek Integrated Solutions, Inc. (improperly named as “Well Shin USA”)’
(individually “Conntek” and collectively “Defendants”). D.E. II. Plaintiff Adam Technologies,
LLC (“Adam Tech”) filed a brief in opposition to the motion (D.E. 27), to which Defendants
replied (D.E. 28).2 For the reasons set forth below, Defendants’ motion is GRANTED IN PART
and DENIED IN PART.
Defendants explain that although Plaintiff named “Well Shin USA” as a Defendant in its
complaint, to their knowledge, there is no such entity by that name. Defendants continue that the
two addresses that Plaintiff attributes to Well Shin USA correspond with Conntek Integrated
Solutions, Inc., which is a subsidiary of Well Shin Taiwan. Def. Br. at 1 n. 1.
2
In this Opinion, Defendants’ brief in support of their motion to dismiss (D.E. 11-1) will be
referred to as “Defs. Br.”; Plaintiff’s brief in opposition (D.E. 27) will be referred to as “PIf. Opp.”
and Defendants’ reply (D.E. 28) will be referred to as “Defs. Reply.” On November 30, 2018,
Plaintiff filed a second opposition brief. D.E. 32. There does not appear to be any differences
I. BACKGROUND3 AND PROCEDURAL HISTORY
Adam Tech is located in Union, New Jersey, and is a manufacturer and seller of specialized
electronic components made or produced by its Taiwan branch, Adam Technologies
mt.,
Ltd.
Adam Tech had a contract with General Electric Appliances (“GE”) to design and create a custom
connector for a wire harness to be used fpr GE washing machines and other appliances. Compl.
¶
2,D.E. I.
On or about July 29, 2014, Conntek executive Mack Davis contacted Adam Tech via email
and telephone calls.
Mr. Davis’ contact allegedly pertained to the purchase of the custom
connector for “Well Shin USA,” and Conntek’s involvement in the GE project. Declaration of
Vincent De Vito (“De Vito Decl.”)
¶fflJ 2-3,
D.E. 27-1. Mr. Davis informed Plaintiff that he was
part of the “WellShin Group,” which includes Wellshin Taiwan,4 Dongguan Weflshin, and several
offices in the United States. Id.
Ex. B.
¶ 2.
Mr. Davis’ email address is “mack@wellshinusa.com.” Id.,
Dongguan Well Shin is based in Guangdong, China and also incorporated there.
between the November 30, 2018 submission and Plaintiff’s initial opposition brief so the Court
does not consider the November30 filing. Then on December 3 and 4, 2018, Plaintiff filed what
appears to be two copies of the same sur-reply brief without leave of Court. D.E. 33, 34. Sur
replies are not permitted without first obtaining leave of court. L. Civ. R. 7.1 (d)(6). “Accordingly,
the Court typically will not consider sur-replies that parties have filed without seeking and
receiving leave to do so.” Roofers’Pension Fund v. Perrigo Co., PLC, No. 16-2805, 2017 WL
3579208, at *3 (D.N.J. Aug. 18, 2017). Because Plaintiff failed to obtain the necessary leave, the
Court will not consider Plaintiffs sur-reply.
The factual background is taken from Plaintiff’s Complaint (and attached exhibits) and the
parties’ declarations submitted in connection with this motion to dismiss pursuant to Rule I 2(b)(2).
See Dayhoff Inc. v. N.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996) (“In deciding a motion to
dismiss for lack of personal jurisdiction, we take the allegations of the complaint as true. But once
a defendant has raised a jurisdictional defect, a plaintiff bears the burden of proving by affidavits
or other competent evidence that jurisdiction is proper.” (internal citations omitted)).
Well Shin Taiwan is incorporated and based in Taipei City, Taiwan. Declaration of Tim Liu ¶
3-6, D.E. 14. While named as a Defendant, Wellshin Taiwan’s involvement in the alleged
wrongdoing is not clear from the allegations in the Complaint.
‘
2
Declaration of Ouyang Dongffl 4-6, D.E. 15. Conntek is incorporated, and has its principal place
ofbusiness, in Wisconsin. Declaration of Drew Sying Liu ¶J 3-4, D.E. 11-2. Conntek also appears
to have a factory in Kentucky, in addition to offices in California, Wisconsin, Kentucky and
Tennessee. De Vito Decl., Ex. D.
As the connector was a custom design, Adam Tech CEO Vincent De Vito informed Mr.
Davis that certain non-Disclosure and non-Compete terms had to be met before ffirther
conversations occurred. Id.
¶ 4.
Mr. Davis agreed and indicated that he would confirm that his
Wellshin colleagues in China and Taiwan accepted the terms. Id. In ifirtherance of such an
agreement, Mr. De Vito went to China, toured the Dongguan Welishin facility and met with three
employees. Id.
¶ 5.
While in China, Mr. De Vito emphasized that Adam Tech had to protect its
intellectual property and sought to ensure that Wellshin would not compete or use the information
against Plaintiff with respect to the GE project. Id. Plaintiff alleges that Dongguan Well Shin’s
Vice President of Sales, James Ouyang, suggested a written agreement, which would be
enforceable in New Jersey, to allay Plaintiffs fears. Id.
¶ 6.
Mr. De Vito drafted the Non-Disclosure/Non-Compete Agreement (the “Agreement”)
upon his return to New Jersey. Mr. De Vito sent the Agreement to Mr. Davis, who forwarded it
to a Wellshin legal representative, Jui-Hsiung, who was presumably located in China, for
signature. Mr. De Vito received an executed copy of the Agreement from Mr. Davis. Id.
¶ 6, Ex.
C. Subsequently, Dongguan Well Shin began sending purchase orders to Plaintiff who then sent
mass quantities of the connector directly to Dongguan Well Shin. Id.
¶ 7.
Dongguan Well Shin
continued to purchase the connector from Plaintiff for approximately two years. Compl.
¶ 23.
In 2017, Dongguan Well Shin began to complain about the quality of the connector and
allegedly refused to pay for delivered stock and outstanding invoices. Id.
3
¶ 24.
Adam Tech alleges
that these were false and unsubstantiated claims. Id.
¶ 24-25.
Adam Tech appears to allege that
Dongguan Well Shin began making the false claims because it was manufacturing the connector
part itself or through other vendors or manufacturers. Id.
¶1 26.
Adam Tech subsequently brought suit, asserting claims for patent infringement, breach of
contract, Lanham Act violations, and New Jersey unfair competition violations. In response,
Defendants filed this motion to dismiss for lack ofjurisdiction, insufficient service of process, and
failure to state a claim. D.E. 11.
II. ANALYSIS
A. Lack of Personal Jurisdiction
1. Legal Standard
Defendants bring their motion in part pursuant to Fed. R. Civ. P. 12(b)(2), which permits
a party to move to dismiss a case for lack of personal jurisdiction. In such a motion, the plaintiff
bears the burden of demonstrating “sufficient facts to establish that jurisdiction is proper.” Mellon
Bank PSFS Nat ‘I Ass ‘ii v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). In reviewing a motion to
dismiss for lack of personal jurisdiction, a court “must accept all of the plaintiffs allegations as
true and construe disputed facts in favor of the plaintiff.” Carteret Say. Bank, FA
i’.
Shushan, 954
F.2d 141, 142 n. I (3d Cir. 1992). But when a defendant raises a jurisdictional defense, “a plaintiff
bears the burden of proving by affidavits or other competent evidence that jurisdiction is proper.”
DayhoffInc. v N.J Heinz C’o., 86 F.3d 1287, 1302 (3d Cir. 1996).
Thus, to withstand a Rule 12(b)(2) motion, a plaintiff may not rely on the pleadings alone,
as it “is inherently a matter which requires resolution of factual issues outside the pleadings.” Time
Share Vacation Club y. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984) (emphasis added).
In conducting this jurisdictional analysis, district courts may rely upon the parties’ declarations for
4
relevant factual support. See, e.g., Pausch LLC v. Ti-Ba Enters., No. 13-6933, 2014 WL 5092649,
at *6.7 (D.N.J. Oct. 8, 2014) (using declarations from both parties to conclude that contacts with
the forum were insufficient for personal jurisdiction); Shnayderman v. Cell- U-More, Inc., No. 185103, 2018 WL 6069167, at *11 (D.N.J. Nov. 20, 2018) (using information from plaintiffs
complaint and declaration to determine that defendant did not travel to the forum state or solicit a
loan from plaintiff in the forum state). Therefore, in determining whether personal jurisdiction
exists, the Court looks beyond the pleadings to all relevant evidence and construes all disputed
facts in favor of the plaintiff
A federal court must have both statutory and constitutional authority to assert personal
jurisdiction over an out-of-state defendant. IMO Indus. Inc. v. Kiekert, 155 F.3d 254, 259 (3d Cir.
1998). This two-step inquiry first looks to the forum state’s long-arm statute, then to the Due
Process Clause of the Fourteenth Amendment to determine if the exercise of jurisdiction is
permitted. Id. In New Jersey, however, the two steps are collapsed into a single inquiry because
the New Jersey long-arm statute allows for the “exercise [ofi jurisdiction over a non-resident
defendant to the uttermost limits permitted by the United States Constitution.” Nicastro v. J.
Mcintyre Mach. Am., Ltd., 201 N.J. 48, 72 (2010) (internal quotation marks omitted); rev’d on
other grounds, 564 U.S. 873 (2011). Therefore, for a court to exercise personal jurisdiction, the
Due Process Clause requires (1) minimum contacts between the defendant and the forum; and (2)
that jurisdiction over the defendant comports with “fair play and substantial justice.” Burger King
Corp. v. Rudzewic_’, 471 U.S. 462, 476 (1985) (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310, 320 (1945)).
5
2. Analysis
Personal jurisdiction may be established by means of general jurisdiction or specific
jurisdiction.
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
General jurisdiction exists if a corporation’s “affiliations with the State are so ‘continuous and
systematic’ as to render [it] essentially at home in the forum State.” Id. “With respect to a
corporation, the place of incorporation and principal place of business are paradigm bases for
general jurisdiction.” DaimlerAG v. Bauman, 571 U.S. 117, 137 (2014). In the present case, the
Court lacks general jurisdiction over Defendants as none are incorporated in New Jersey nor have
their principal place of business in this state. Well Shin Taiwan conducts its business operations
in Taiwan and is incorporated under Taiwanese law. Dongguan Well Shin is incorporated under
Chinese law and conducts its business operations there. Conntek is incorporated under the laws
of Wisconsin. While Conntek appears to have offices and factories in different parts of the United
States, it appears to have no physical presence in New Jersey. Moreover, Plaintiff fails to establish
that this is an “exceptional case” that may warrant the exercise of general jurisdiction.
Specific jurisdiction may exist “if the defendant has purposefully directed his activities at
residents of the forum and the litigation results from alleged injuries that arise out of or relate to
those activities.” Burger King, 471 U.S. at 473. In light of Supreme Court precedent, the Third
Circuit has developed a three-part test to determine whether specific personal jurisdiction may be
exercised. First, the defendant must have “purposefully directed [its] activities at the forum.”
O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007) (intemal quotation marks
omitted). The first requirement of this test is also known as “purposeful availment,” and seeks to
ensure “that a defendant will not be haled into a jurisdiction solely as a result of ‘random,
fortuitous, or attenuated contacts” or based on the “unilateral activity of another party or third
6
person.” Burger King, 471 U.S. at 475 (internal quotation marks omitted) (citing Helicopteros
Nacionales de C’olom., LA. v. Hall, 466 U.S. 408, 417 (1984); Keeton v. MusHer Magazine, Inc.,
465 U.S. 770,774(1984); World-Wide Volkswagen Corp.
i
Woodson, 444 U.S. 286, 299 (1980)).
Second, the litigation must “arise out of or relate to at least one of those activities.” Id. (internal
quotation masks omitted). Third, if the first two requirements are met, the exercise ofjudsdiction
must “othenvise comport with fair play and substantial justice.” Id. (internal quotation marks
omitted).
For contract claims, a court may also “analyze the totality of the circumstances surrounding
a contract to determine whether the exercise ofjurisdiction over the defendant is proper.” Miller
Yacht Sales, Inc. v. Smith, 384 F.3d 93, 99 (3d Cir. 2004). In addition, traveling to the forum to
consult with the other party—regardless of who solicited the contact—as well as mail and wire
communications, may establish purposeful availment even if physical presence of the party is
lacking. Telcordia Tech, Inc. v. Telkom SA Ltd., 458 F.3d 172, 177 (3d Cir. 2006). Courts should
also consider whether the defendant’s contacts with the forum were instrumental in either the
formation or breach of the contract,
Id.; see also Burger King, 471 U.S. at 479 (“[P]dor
negotiations and contemplated future consequences, along with the terms of the contract and the
parties’ actual course of dealing
.
.
.
must be evaluated in determining whether the defendant
purposefully established minimum contacts within the forum.”). “An individual’s contract with
an out-of-state party alone,” however, cannot “automatically establish sufficient minimum
contacts in the other party’s home forum.” Burger King, 471 U.S. at 478.
Here, Well Shin Taiwan did not purposefully avail itself of the New Jersey forum. In fact,
based on the evidence, it is not clear that Adam Tech had
any
interaction with the entity or that
Well Shin Taiwan was involved in the alleged wrongdoing, much less wrongdoing that was
7
directed at this forum. Thus, there is simply no basis upon which the Court could conclude that
Well Shin Taiwan purposeffilly directed any relevant activities to New Jersey. Defendants’ motion
to dismiss is therefore granted on these grounds as to Well Shin Taiwan.
But this is not the case for Conntek and Dongguan Well Shin. Turning first to Conntek,
Mr. Davis initially reached out to Adam Tech—a New Jersey corporation—by phone and email
with the purpose of establishing a long-term contractual relationship. De Vito Decl.
¶fflJ
2-3.
“Parties who reach out beyond [theirj state and create continuing relationships and obligations
with citizens of another state are subject to the regulations of their activity in that undertaking.”
Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001) (internal quotations omitted)
(quoting Burger King, 471 U.S. at 473).
Moreover, Mr. Davis continued to serve as the
intermediary between Dongguan Well Shin and Adam Tech while the parties negotiated the
contract and to execute the contract.
As for Dongguan Well Shin, although it did not initiate the contact, representatives met
with Mr. De Vito in China for contract negotiations. During these negotiations, Adam Tech voiced
its concerns as to competition between the parties, and Dongguan Well Shin specifically suggested
that the parties enter into an agreement that would be enforceable in New Jersey to protect Adam
Tech’s intellectual property. Dongguan Well Shin and Adam Tech subsequently entered into the
Agreement, which contained a New Jersey choice-of-law provision. Dongguan Well Shin then
began to purchase connectors from Adam Tech for approximately two years.
Moreover, both Conntek and Dongguan Well Shin knew or should have known that they
were dealing with a New Jersey corporation, as evidenced by the New Jersey choice of law
provision agreed upon in the Agreement and e-mail signature of Adam Tech employees indicating
that their location was Union, New Jersey. De Vito Decl.
8
¶ 4,
Ex. C. Thus, the totality of the
circumstances supports the conclusion that Conntek and Dongguan Well Shin could have expected
to be in a New Jersey courtroom with respect to its interactions with Adam Tech. See, e.g., Cornish
v. Morris Commc’ns Co., LLC, No. 08-6395, 2009 WL 2169046, at *5 (D.N.J. July 16, 2009)
(finding personal jurisdiction over defendant who reached out to a New Jersey resident to initiate
business relationship via email, met with plaintiff at the defendant’s out of state office to negotiate
the contract, then signed contract that the plaintiff mailed and emailed to the defendant).
Defendants argue that the choice of law provision in the Agreement does not establish
minimum contacts. Defs. Reply at 3-4. Defendants correctly note that Plaintiff may not rely solely
on the New Jersey choice of law provision to establish jurisdiction. Time Share, 735 F.2d at 65 (a
choice of law provision “would not itself be enough to vest jurisdiction.”). However, the choiceof-law provision is relevant to the analysis as “a factor in showing whether the defendants could
foresee that their acts would have effects in [New Jersey].” Id.
Defendants also contend that the “stream of commerce” theory does not establish minimum
contacts on these facts since Adam Tech alludes to a stream of commerce argument in its
opposition brief. Defs. Reply at 5. The Court, however, concludes that Conntek purposefully
availed itself of this forum through its negotiation and execution of the Agreement. In sum, the
facts sufficiently establish that Conntek and Dongguan Well Shin purposefully directed their
activities at Plaintiff in New Jersey.
The litigation arises out of Conntek and Dongguan Well Shin’s contacts with the forum.
“[S]pecific jurisdiction requires a closer and more direct causal connection than that provided by
the but-for test.”5 O’Connor, 496 F.3d at 323. There is no “specific rule” that a court should apply
The but-form standard is satisfied “when the plaintiffs claim would not have arisen in the
absence of the defendant’s contacts.” O’Connor, 496 F.3d at 319.
9
to determine whether a plaintiffs claims are closely related to a defendant’s contacts such that the
court has specific jurisdiction. Id. But the Third Circuit has explained that the relatedness inquiry
is fact-sensitive and “should hew closely to the reciprocity principle upon which specific
jurisdiction rests.” Id.
In broad strokes, Plaintiff alleges that after Conntek reached out to Plaintiff, Plaintiff
negotiated and then entered into an agreement to protect its intellectual property with Dongguan
Well Shin, all with Conntek’s assistance. During the parties’ negotiations, Dongguan Well Shin
suggested that the Agreement be enforceable in New Jersey and the Agreement contains a New
Jersey choice-of-law clause. Plaintiff now alleges that Defendants misappropriated Plaintiffs
intellectual property. Accordingly, Plaintiffs claims are sufficiently related to Dongguan Well
Shin and Conntek’s contacts with this forum as Plaintiff would not have provided Dongguan Well
Shin with the connector at issue without the Agreement, and the New Jersey choice-of-law clause
enticed Plaintiff to enter into the Agreement and business relationship with Defendants.
Even if a plaintiff proves the first two requirements, “the exercise of jurisdiction must
otherwise comport with fair play and substantial justice.” O’Connor, 496 F.3d at 317 (internal
quotations omitted). Because the first two requirements effectively establish the existence of
minimum contacts, a defendant “must present a compelling case that the presence of some other
considerations would render jurisdiction unreasonable.” Burger King, 471 U.S. at 477; see also
Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 207 (3d Cir. 1998) (noting that
jurisdiction will be unreasonable in “rare cases” if minimum contacts are established). Courts
consider the following factors when assessing fairness: “the burden on the defendant, the forum
State’s interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and
effective relief, [and] the interstate judicial system’s interest in obtaining the most effective
10
resolution of controversies.” Burger King, 471 U.S. at 477. Here, Defendants fail to argue that
exercising jurisdiction in this matter would otherwise offend the traditional notions of fair play
and substantial justice. Although Dongguan Well Shin is a foreign entity, the Court sees no reason
why New Jersey is an unreasonable forum. Moreover, New Jersey has an interest in protecting its
businesses from unfair competition claims.
Accordingly, this Court has specific personal jurisdiction over Dongguan Well Shin and
Conntek. Defendants’ motion to dismiss is denied on these grounds.
B. Insufficient Service of Process6
Defendants also move to dismiss Plaintiffs Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(5), which permits dismissal for insufficient service of process. “Before a federal
court may exercise personal jurisdiction over a defendant, the procedural requirements of service
of summons must be satisfied.” Wahab v. N.J. Dep’t of EnvtL Prot., No. 12-6613, 2017 WL
4790387, at *5 (D.N.J. Oct. 24,2017) (quoting Omni Capital Int’l Ltd. v. Rudolf Wolff & Co., 484
U.S. 97, 104 (1987)). Federal Rule of Civil Procedure 4 governs the requirements that must be
met for proper service under Rule 12(b)(5). DiSantis v. Allied Constr., LLC, No. 17-11379, 2018
WL 3647210, at *3 (D.N.J. July31, 2018). In addition, “the party asserting the validity of service
bears the burden of proof on that issue.” Grand Entertainment Grp. v. Star Media Sales, 988 F.2d
476, 488 (3d Cir. 1993).
1. Dongguan Wefl Shin
Defendants argue that service was improper as to Dongguan Well Shin because it was not
served in accordance with the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents. Defs. Br. at 11-12. Outside of the United States, a foreign corporation
6
Because this Court only has personal jurisdiction over Conntek and Dongguan Well Shin, the
Court will only address service of process as to these Defendants.
11
“must be served
.
.
.
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)(2). In this instance, Plaintiff personally
served Dongguan Well Shin via a courier in Guangdong, China. Ouyang Dong Decl.
¶
23.
Accordingly, service on Dongguan Well Shin was not effective pursuant to Rule 4(f). See ISPEC,
Inc. v. Tex R.L. Indus., Inc., No. 12-4339, 2014 WL 4162858, at *4 (D.N.J. Aug. 20, 2014)
(rejecting argument that personal service of foreign corporation in Taiwan was effective because
“the Rule expressly excludes” such service); Trump Taj MahalAssocs. v. Hotel Sen’s., Inc., 183
F.R.D. 173, 179 (D.N.J. 1998) (explaining that the plaintiff “did not effectuate valid service of
process on [the defendant] when it personally served [a vice president] in England”).
2. Countek
Defendants contend that Adam Tech’s service upon Conntek was defective because Adam
Tech failed to deliver a copy of the Summons with the Complaint and failed to obtain a signature
to acknowledge receipt. Def. Br. at 13; Decl. of Drew Sying Liu
¶ 24
(stating that Conntek was
not provided with a Summons during Plaintiffs attempted service). Rule 4(c)U) requires that a
summons be served with a copy of the complaint.
Id.; see also Apollo Techs. Corp. v.
Centrosphere Indus. Corp., 805 F. Supp. 1157, 1187 (3d Cir. 1992) (“[B]efore a court exercises
personal jurisdiction over a defendant, the procedural requirement of service of a summons must
be satisfied.”). Adam Tech counters that service was proper, and in its opposition brief states that
it attached a signed return of service with both the Summons and Complaint as exhibits. Plf.
Opp.
at 15. Adam Tech, however, failed to actually provide these documents. Moreover, the docket
does not reflect a return of service as to Conntek. Thus, Plaintiff does not meet its burden of
establishing that Conntek was actually served with a copy of the Summons. As a result, service
was improper under Rule 4(c)(l). See Kilinc v, Tracfone Wireless Inc., 757 F. Supp. 2d 535, 538
12
(W.D. Pa. Dec. 27, 2010) (dismissing complaint in part because the plaintiff failed to serve both
the summons and complaint on the defendant).
Plaintiff argues that service was proper as to both entities because neither Defendant was
prejudiced by the improper service. Plf. Opp. at 14. Plaintiff, however, provides no legal support
for this theory and the Court is not aware of any. As a result, Plaintiffs argument is rejected.
“[Djistrict courts possess broad discretion to either dismiss the plaintiffs complaint for
failure to effect service or to simply quash service of process.” Umbenhauer v. Woog, 969 F.2d
25, 30 (3d Cir. 1992). Courts are “reluctant to dismiss an action” when a plaintiff acts in good
faith but fails to effectuate proper service. Ramada Worldwide Inc. v. ShrUi Krupa, LLC, No. 072726, 2013 WL 1903295, at *6 (D.N.J. Apr. 15,2013); see also Hoist v. New Jersey, No. 12-5370,
2013 WL 5467313, at *3 (D.N.J. Sept. 30, 2013) (noting that courts will grant additional time to
a plaintiff who acts in good faith to properly serve a defendant despite prior failure to effect proper
service of process). If there is a reasonable prospect that service can be properly effected, courts
quash service and provide a plaintiff with additional time to effectuate proper service upon the
defendant. Hoist, 2013 WL 5467313, at *5..5; Ramada Worldwide, Inc., 2013 WL 1903295, at *6
(recommending that plaintiffbe afforded with an additional sixty days to effect proper service after
finding service was attempted in good faith but to the wrong address).
In this instance, it appears that Adam Tech attempted to serve Dongguan Well Shin and
Conntek in good faith, and there is no indication that either entity cannot be served. Although
service was procedurally improper, Dongguan Well Shin and Conntek were nevertheless provided
with a copy of the Complaint and filed the instant motion to dismiss. Thus, Defendants clearly
13
had actual notice of this matter and have not been prejudiced by Plaintiffs improper service.7 See
Ramada Worldwide, Inc., 2013 WL 1903295, at *7 (granting plaintiff additional time to effect
proper service because defendant had actual notice of the suit but “proper service is more than a
formality, and must be effectuated”) (emphasis added). As a result, Adam Tech is granted leave
to re-serve Dongguan Well Shin and Conntek.
In sum, the Court concludes that service as to both entities was improper. As a result,
service is quashed and Plaintiff is granted an additional sixty (60) days to effect proper service of
process.
Because Plaintiff is granted leave to re-serve Dongguan Well Shin and Conntek,
Defendants’ motion to dismiss is denied without prejudice at this time.
III. CONCLUSION
For the reasons set forth above, Defendants’ motion to dismiss is GRANTED IN PART
and DENIED IN PART. An appropriate order accompanies this opinion.
Dated: August 12, 2019
JohnMitiael Vazquez’’.J.
‘
Defendants argue that they were prejudiced by Plaintiffs improper service because Dongguan
Well Shin could not properly understand the case without translated copies and Conntek did not
know when it was required to respond without a copy of the summons. Defs. Reply at 8. Given
the fact that both Defendants filed a timely motion to dismiss in this matter, this prejudice,
especially as to Conntek, appears minimal at best.
14
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