A.P. Moller - Maersk A/S, trading as Maersk Line v. Safewater Lines (I) Pvt., Ltd. et al

Filing 84

OPINION AND ORDER. The Court ORDERS that Samrat's objections 54 to Maersk's voluntary dismissal of Safewater I and Safewater are OVERRULED and Maersk's claims against Safewater I and Safewater are DISMISSED WITH PREJUDICE pursuant to Maersk's notice of voluntary dismissal under Rule 41(a)(1)(I); that Defendant and Cross-Claimant Samrat's Federal Rule 55(a)'s request for entry of default against Cross-Claim Defendants Safewater I and Safewater 57 and corrected motion to strike 60 , which superseded 59 ) are DENIED; and that Samrat's motion to consolidate 65 this case with H-16-1565 is DENIED. (Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED
January 31, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
A.P. MOLLER-MAERSK A/S, TRADING§
AS MAERSK LINE,
§
§
Plaintiff,
§
§
VS.
§
§
SAFEWATER LINES (1) PVT, LTD., §
SAMRAT CONTAINER LINES, INC.
§
and ATNI, INC.,
§
§
Defendants.
§

David J. Bradley, Clerk

Civ. A. H-13-1726

OPINION AND ORDER
Pending before the Court in the above referenced cause,
seeking to recover clean up costs, freight demurrage, and other
expenses arising from a spill of hydrochloric acid (“HDL) from a
sealed shipping container after it was packed in drums and stowed
aboard the vessel by M/S Global Multichem and carried across the
ocean from Pipavav, India to Houston, Texas, are the following
matters:
(1)

Samrat

Container

Lines,

Inc.’s

(“Samrat’s”) opposition (instrument #55) to
Plaintiff A.P. Moller-Maersk A/S, Trading as
Maersk

Line’s

(“Maersk’s”)

notice

of

dismissal (#54) of Defendants Safewater Lines
(I) Pvt. Ltd. (“Safewater I”) and Safewater

-1-

Lines India Pvt. Ltd. (“Safewater”)1 with prejudice;
(2)

Defendant

and

Cross-Claimant

Samrat’s

Federal Rule 55(a)’s2 request for entry of
default

against

Cross-Claim

Defendant

Safewater I (#57);
(3)

Defendant

corrected

and

motion

Cross-Claimant
to

strike

Samrat’s

(#60,

which

supersedes #59) Plaintiff’s opposition (#58)
to Samrat’s motion

for entry of default

(#57) of Safewater as to Samrat’s CrossClaim; and
(4) Samrat’s motion to consolidate this case
with H-16-cv-1565, A.P. Moller-Maersk A/S,
Trading as Maersk Line v. Samrat Container
Lines, Inc. (#65).
In the governing second amended complaint (#43), Maersk
sues Defendants as freight forwarders, logistics providers, nonvessel

operating

common

carrier

(“NVOCC”),

manufacturers,

receivers and/or shippers of the HCL cargo for negligent failure
to

comply

with

regulations

for

the

shipment

of

1

hazardous

These two entities are sometimes referred to as two,
and sometimes as one, but the documents show through the names
that both are intended when mentioned. For clarity’s sake, the
Court has referred to both.
2

Rule 55(a), “Entering a Default,” states,

When a party against whom a judgment for
affirmative relief is sought has failed to
plead or otherwise defend, and that failure
is shown by affidavit or otherwise, the clerk
must enter the party’s default.
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materials, breach of service contracts or contracts of carriage,
and contribution of at least $243,775.03 under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(“CERCLA”), 42 U.S.C. §§ 9601 et seq.
Samrat’s Opposition (#55) to Maersk’s Notice of Dismissal (#54)
On February 8, 2016 Maersk filed a voluntary notice of
dismissal with prejudice under Federal Rule of Civil Procedure
41(a)(1)(i) against Safewater (I) and Safewater (#54) before they
filed an answer or a motion for summary judgment, but after Maersk
had settled with them.

The notice expressly stated that Maersk’s

claims against Samrat remained pending.
Samrat’s objections to the notice of dismissal (#54)
were filed on February 8, 2016.
Samrat

has

filed

responsive

Samrat first argues that because
pleadings

to

the

complaint

and

subsequently a cross-claim against the Safewater Defendants, under
Rule 41(a)(2) Maersk was required, but failed, to file a motion
and obtain a court order for the dismissal.

Samrat contends that

in the parties’ Second Joint Discovery/Case Management Plan (#40
in ¶ 6), Samrat made clear its intention to cross-claim against
the Safewater Defendants and to add Global Multichem as a third
party defendant, so the Court should leave Safewater Defendants in
the case as cross-claim defendants of Samrat and not dismiss them
on Maersk’s notice.
The Court observes that Samrat filed its cross-claim
against Safewater (I) and Safewater (#49) on January 25, 2016.
That

same

day

Maersk’s

attorney

filed

an

order

of

partial

dismissal of Safewater I and Safewater (#48), which this Court
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struck (#53) because there was no motion accompanying it, because
the document was designated as an order without any explanation,
and because Samrat opposed it.3

Approximately two weeks later

Maersk filed its notice of dismissal, to which Samrat voiced its
objections the same day.
In response (#56), highlighting the fact that Samrat
provides no legal authority for any of its arguments, Maersk first
points out that as a matter of law “[t]he notice of dismissal is
‘self-effectuating’” and “no order or other action by the district
court is required.”
(5th Cir. 2015).

In re Amerijet Int’l, Inc., 785 F.3d 967, 973

The Court has no role in such a dismissal.

Id.

Furthermore Samrat’s filing of an answer does not bar Maersk from
filing a Rule 41 notice of voluntary dismissal as to another
defendant. Plains Growers, Inc. By and Through Florists’ Mutual
Ins. Co. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 255 (5th
Cir. 1973)(dismissal allowed as to defendants that have not filed
an answer or motion for summary judgment even when the case
remains pending against other defendants that have answered).
Second, Maersk questions the validity of the service on
the Safewater Defendants by “Federal Express; U.S. International
Mail, postage prepaid; e-mail, and facsimile” (#51, Certificate of
Service, and #52, Supplemental Certificate of Service) of Samrat’s
cross-claim on the Safewater Defendants, which are located in

3

In #58 at p.3, Plaintiff’s opposition to Samrat’s
request for entry of default, Plaintiff now explains that it had
settled with Safewater Defendants and they were supposed to file
an agreed entry of an order of dismissal, but they did not appear
and file such, so Maersk’s counsel filed an order that was not
agreed.
-4-

India, which is a signatory to the Hague Convention on Service
Abroad of Judicial Documents and Extrajudicial Documents in Civil
or Commercial Convention.

Samrat never attempted service under

the Hague Convention, under which the methods of service appear to
be limited to those under Rule 4(f)(3)(“by other means not
prohibited by international agreement, as the court orders”),4 and

4

Rule 4(h)(2) states that when a foreign corporation
cannot be served in the United States, it must be served “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 under (f)(2)(C)(i).
Rule 4(f) states in whole,
Serving an Individual in a Foreign Country.
Unless federal law provides otherwise, an
individual--other
than
a
minor,
an
incompetent person, or a person whose waiver
has been filed--may be served at a place not
within any judicial district of the United
States:
(1) by any internationally agreed means of
service that is reasonably calculated to give
notice, such as those authorized by the Hague
Convention on the Service Abroad of Judicial
and Extrajudicial Documents:
(2) If there is no internationally agreed
means, or if an international agreement
allows but does not specify other means, by a
method that is reasonably calculated to give
notice:
(A) as prescribed by the foreign
country’s law for service in that
country in an action in its courts of
general jurisdiction;
(B) as the foreign authority directs in
response to a letter rogatory or letter
of request; or
(C) unless prohibited by the foreign
country’s law, by:
(i) delivering a copy of the summons
and of the complaint to the individual
personally; or
(ii) using any form of mail that the
clerk addresses and sends to the
individual and that requires a signed
receipt; or
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which apparently has not been implemented.

Maersk asks the court

to strike the Certificate of Service (#51) and Supplemental
Certificate (#52) as improper.

Samrat attempted alternative

service without asking the court and without obtaining an order
from the court permitting alternative service, both required by
Rule 4(f)(3).

In addition Maersk emphasizes that even though

Magistrate Judge Stacy established a lengthy schedule on

May 13,

2015 in order to allow Samrat until January 12, 2016 to add
possible responsible parties as defendants and effect service
under the Hague Convention, Samrat did nothing for nine months.
The Court agrees with Maersk as a matter of law that
Samrat’s cross claim against the Safewater Defendants does not bar
Maersk’s voluntary dismissal of the two entities as to Maersk’s
claims against them. See also, e.g., Bechuk v. Home Depot U.S.A.,
Inc., 814 F.3d 287, 291 (5th Cir. 2016)(quoting In re Amerijet);
In re Heritage Organization, LLC, 466 B.R. 862, 873 (N.D. Tex.
2012)(citing Plains Growers); Lankford v. National Carriers, Inc.,
Civ. No. 6:12-1280, 2013 WL 672454, at *6 (W.D. La. Jan. 14,
2014)(same).
alternative

Nor did Samrat comply with the requirements for
service

under

Rule

4(f)(3).

The

Court

therefore

OVERRULES Samrat’s objections and affirms the legal propriety of
Maersk’s voluntary dismissal with prejudice of its claims against
the Safewater Defendants.
Samrat’s Request for Entry of Default
Against Cross-Claim Defendant Safewater I (#57) and

(3) by other means not prohibited by
international agreement, as the court orders.
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Samrat’s Corrected Motion to Strike (#60)
Plaintiff’s Opposition (#58) to
In

its

motion

for

entry

of

#57

default

(#57)

against

Safewater I and Safewater, Samrat states that it served its crossclaim (#49) on Safewater I and Safewater on January 26, 2016 (#51,
proof of service by Federal Express, U.S. International Mail,
postage prepaid, imaged e-mail, and facsimile by the attorney at
law of the State of Maryland and #52, supplemental proof of
service

with

confirmation).5

copies

of

the

Federal

Express

delivery

Under Rule 12(a)(2), Safewater I and Safewater

were required to serve answers to the cross-claim within twenty
days, or by February 15, 2016.
are in default.

They failed to do so and therefore

Samrat requests entry of default against the

Safewater Defendants pursuant to Federal Rule of Civil Procedure
55(a).
Maersk opposes the request on the grounds that Samrat
has failed to establish proper service of process on Safewater I
and Safewater, foreign companies located in India, under Hague
Convention

on

Service

Abroad

of

Judicial

Documents

and

Extrajudicial Documents in Civil or Commercial Convention (“Hague
Convention”), or under Rule 4(h)(2)(“at a place not within any
judicial district of the United States, in any manner prescribed

5

Plaintiffs point out that not only was the service
improper, but the only confirmation provided by Samrat is the one
for Federal Express (#52), which shows that it was signed for by
M. Manisha, not the person to whom it is addressed (Anand Parab),
there is no record of whether the package was finally delivered to
Parab, and no record whether M. Manisha is an officer or director
of the company authorized to receive service on it.
-7-

by Rule 4(f) for serving an individual, except personal delivery
under (f)(2)(C)(i)) and 4(f) of the Federal Rules of Civil
Procedure.

Without such proper service of process, entry of

default is precluded.

Hazim v. Schiel & Denver Book Group, Ci. A.

No. H-12-1286, 2013 WL 2152109, at *1, 2013 U.S. Dist. LEXIS 69837
at *2-3 (S.D. Tex. May 16, 2013)(without proper service, the court
lacks jurisdiction to enter default under Rule 55(a)), citing
Sandoval v. Bluegrass Reg. Mental Health-Mental Retardation Bd.,
No. 99-5018, 2000 WL 1257040, at *5 (6th Cir. July 11,(Rosenthal,
J.) 2000)(“[T]here must be effective service of process on a
defendant before an entry of default can be made.”).

In Hazim

Judge Rosenthal examined whether an entry of default and default
judgment were justified against a foreign defendant found in the
United Kingdom, with service of process effected by a Federal
Express

and

personal

service

on

the

office

manager.

She

ultimately concluded that service was improper because there was
no service under the Hague Convention and the plaintiff failed to
explain how the methods of service (Federal Express and personal
service)

were

permissible

under

American,

British,

and

international law and therefore denied the request for entry of
default.6

Hazim, 2013 WL 2152109, at *3, 2013 U.S. Dist. LEXIS at

*6-9. The Safewater Defendants never appeared in this lawsuit, so
they had to be served in India. Maersk insists that Safewater has

6

The United Kingdom and the United States are both
signatories to the Hague Convention. Hazim, 2013 WL 2152109, at
*3, 2013 U.S. Dist. LEXIS at *8. For the instant case, both
India and the United States are signatories.
Federal Trade
Commission v. PCCare247, Inc., No. 12 Civ, 7189 (PAE), 2013 WL
841037, at *3, 2013 U.S. Dist. LEXIS at *9-10.
-8-

never claimed, nor is there any evidence in the record, that
Samrat ever attempted to serve Safewater by sending the required
documents to the Central Authority in India under the Hague
Convention nor under Rules 4(h)(2)(requiring it to serve Safewater
“at a place not within any jurisdiction of the United States, in
any manner prescribed by Rule 4(f) for serving an individual,
except personal delivery under (f)(2)(C)(i)) and 4(f). Therefore,
as

in

Hazim,

there

is

no

jurisdiction

Defendants to permit entry of default.

over

the

Safewater

Samrat has not provided

any evidence (1) that India allows service by International Mail,
Federal Express, email or facsimile, or (2) that the Clerk of this
Court sent the required documents by International Mail to the
Safewater Defendants, as would be required for alternative service
under Rule 4(f)(2)(C)(ii), or (3) that this Court authorized an
alternative means of service under Rule 4(f)(3).
In response Samrat moved to strike Maersk’s opposition
(#60).

Noting that under Rule 55(a) the Clerk must enter a

party’s default “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend” as “shown by affidavit or otherwise,” Samrat maintains
that service of pleadings after a complaint has been filed is
governed by Federal Rule of Civil Procedure 5; Rule 5(b)(2)(C)
expressly permits service by “mailing it to the person’s last
known address–-in which event service is complete upon mailing.”
Samrat insists that service of Samrat’s cross-claim on Safewater
I

and

Safewater

was

effected

by

Federal

Express,

U.S.

International Mail, postage prepaid, imaged e-mail, and facsimile
-9-

on January 26, 2016,7 as is evidenced by the Certificate of
Service and Supplemental Certificate of Service.

Thus an answer

to the cross-claim was due by February 19, 2016, but none was
filed.

Moreover,

Samrat

incorrectly

maintains

that

Hazim

discussed the adequacy of a complaint, not a later filed pleading,
and therefore is inapposite.
In

response

(#61)

to

Samrat’s

corrected

motion

to

strike, Maersk points out that Samrat’s cross-claim was a new
claim for contribution and indemnity and thus it is subject to
service under Rule 5(a)(2), which provides in relevant part, “[A]
pleading that asserts a new claim for relief against such a party
must be served on that party under Rule 4,” not under 5(b)(2)(C).
See Waters v. Farmers Texas County Mutual Ins. Co., 9 F.3d 397,
399 (5th Cir. 1993).

Because Samrat did not serve the Cross-Claim

on the Safewater Defendants under Rule 4, entry of default is
prohibited.

Alvarez v. Well-S Indus., No. 12-CV-8835(VSB)(KNF),

2014 WL 289548, at *1, 2014 WL Dist. LEXIS 87173, at *3-5
(S.D.N.Y. 2014).

Maersk therefore asks that the Court deny

Samrat’s request for entry of default pursuant to Rule 55(a).
Just because a brief disagrees with another party’s
argument does not warrant striking it.

7

Indeed most litigation is

Samrat explains that to be sure Safewater Defendants
had notice of the cross-claim, Samrat emailed a copy to an email
address he had used for years to communicate with them, faxed it
to a facsimile number it had also used for years, and sent a copy
via Federal Express to the same address where the Indian
authorities certified that Safewater had been served with the
Second Amended Complaint. Samrat also served a copy of the crossclaim and the Certificate of Service on Maersk on January 26,
2016. #60 at pp. 3-4.
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comprised of such disagreements, which it is the role of the Court
to resolve.

Thus the Court denies the motion to strike Maersk’s

opposition, but addresses the merits of the dispute.

The Court

also does not strike the certificates of service because if they
are invalid, they have no effect on the case.
Furthermore, here, too, the Court agrees with Maersk
that service on the two Indian Safewater entities had to be made
under the Hague Convention since both the United States and India
are parties to it.

As noted by the court in Hazim, the United

States Supreme Court has stated that “‘compliance with the Hague
Convention is mandatory in all cases to which it applies.’”
Hazim,

2013

WL

2152109,

at

*3,

quoting

Volkswagenwerk

Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988).

The

Court therefore denies Samrat’s request for entry of default
because of lack of jurisdiction and Samrat’s corrected motion to
strike, also because of lack of jurisdiction and because Rule 4,
not Rule 5(b)(2)(C), governs service of the new cross claim.
Samrat’s Motion for Consolidation (#65)
Samrat moves to consolidate this case with H-16-1564
under

Rule

42(a)8

on

the

grounds

8

that

they

involve

common

Rule 42(a) provides, “If actions before the court
involve a common question of law or fact, the court may: (1) join
for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or (3) issue any other orders to
avoid unnecessary cost or delay.” The rule “should be used to
expedite trial and eliminate unnecessary repetition and
confusion.” Miller v. U.S. Postal Service, 729 F.2d 1033, 1036
(5th Cir. 1984), citing In re Air Crash Disaster, 549 F.2d 1006,
1013 (5th Cir. 1977). “Consolidation does not so completely merge
the two suits as to deprive a party of any substantial rights that
he may have had if the actions had proceeded separately, for the
two suits retain their separate identities and each requires the
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questions of law and fact because both assert the same claims
between Maersk and Samrat.

Both actions are pending in the

Southern District of Texas, but the new one is presided over by
the Honorable Alfred Bennett.

Questions of liability are the

same, i.e, the invoice amounts due.

Samrat argues that there is

no risk of confusion in consolidation and that consolidation will
conserve judicial resources and reduce the time of trying both
cases separately.
In its response in opposition (#66), Maersk points out
that the instant case was filed on June 13, 2013 and is much
further along in the procedural and discovery process that H-161565, filed almost three years later.
sheets demonstrates a wide gap.

A comparison of the docket

Furthermore in the instant case

Maersk has settled with Defendants ATNI, Inc. and the Safewater
entities.

In the new case Plaintiff only obtained summons for

Safewater I and Safewater on September 7, 2016, and there is no

entry of a separate judgment.” Id., citing Kershaw v. Sterling
Drug, Inc., 415 F.2d 1009, 1012 (5th Cir. 1969). Courts have wide
discretion in deciding whether to allow consolidation. Whiteman
v. Pitrie, 220 F.2d 914, 918 (5th Cir. 1955)(finding no abuse of
discretion where the court denied a motion to consolidate a jury
case with a nonjury case). The court may consider factors such as
“whether the actions are pending before the same court; . . . any
risk of prejudice or confusion from the consolidation, and the
risk of inconsistent adjudications of common factual or legal
questions if the matters are tried separately; and whether
consolidation will save time and expense.” Lay v. Spectrum Clubs,
Inc., CV. No. SA-12-CV-00754-DAE, 2013 WL 788080, at *2 (W.D. Tex.
March 1, 2013).
The court may decide that consolidation is
inappropriate where “two cases have markedly different procedural
postures,” with one “rapidly nearing final judgment” and the other
“just beginning,” so consolidation would not serve judicial
economy, but instead delay final resolution in the older case and
create unneeded repetition and confusion. See, e.g., Pedigo v.
Austin Rumba, Inc., Cause No. A-08-CA-803-JRN, 2010 WL 2730463, at
*1 (W.D. June 24, 2010).
-12-

entry in the record showing service has been effected on them in
India. A court may deny a motion to consolidate where “cases were
at different stages of preparedness for trial.”

St. Bernard

General Hospital, Inc. v. Hospital Service Ass’n of New Orleans,
Inc., 712 F.2d 978, 990 (5th Cir. 1983), cert. denied, 466 U.S. 970
(1984).9

Furthermore the facts and the law are not the same in

the two suits.

The instant case is centered on the spill of HCL

from a container after it arrived in Houston, with the central
issue

being

whether

Samrat

is

responsible,

either

through

indemnity, negligence, or breach of contract, to reimburse Maersk
for its clean up and related expenses.

The new suit asserts

breach of contract claims for unpaid breach of contract claims in
invoices attached as Appendix 1 to the complaint in the new suit.
Thus the legal and factual issues are different.

Therefore

consolidation would not serve conservation of judicial resources.
The Court again agrees with Maersk that consolidation is
not appropriate here and denies Samrat’s motion.
Accordingly, for reasons stated in the Opinion and
Order, the Court
ORDERS the following:

9

In accord, Mills v. Beech Aircraft Corp., Inc., 886
F.2d 758, 762 (5th Cir. 1989)(“Consolidation may properly be denied
in instances where the cases are at different stages of
preparedness for tail.”); Rimkus Consulting Group, Inc. v.
Cammarata, Civ. A. No. H-07-0405, 2008 WL 5210722, at *22 (S.D.
Tex. Dec. 12, 2008)(“The court also considers whether the cases
are at different stages of trial preparation”); Arrieta v. Yellow
Transportation, Inc., Civ. A. No. 3:05-CV-2271-D, 2009 WL 90359,
at *1 (N.D. Tex. Jan. 13, 2009)(same).
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(1) Samrat’s objections (#54) to Maersk’s
voluntary

dismissal

of

Safewater

I

and

Safewater are OVERRULED and Maersk’s claims
against

Safewater

I

and

Safewater

are

DISMISSED WITH PREJUDICE pursuant to Maersk’s
notice of voluntary dismissal under Rule
41(a)(1)(I) (#54);
(2)

Defendant

and

Cross-Claimant

Samrat’s

Federal Rule 55(a)’s request for entry of
default

against

Cross-Claim

Defendants

Safewater I and Safewater (#57) and corrected
motion to strike (#60, which superseded #59)
are DENIED; and
(3) Samrat’s motion to consolidate (#65) this
case with H-16-1565 is DENIED.
SIGNED at Houston, Texas, this

31st

day of

January ,

2017.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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