Survey of 1996 Developments in International Law in Connecticut
| Pages | 185 |
| Publication year | 2021 |
71 CBJ 185. Survey of 1996 Developments in International Law In Connecticut
This year's report is devoted to cases almost exclusively because there was no relevant Connecticut legislation during 1996. As usual, there were several decisions on the proper methods of service of process. Other cases involved enforcement of foreign judgments, claims against the United States and forum non conveniens. (fn1) There was also a minor change in the federal regulations (fn2) concerning legalization of documents not covered by the Hague Convention on the Legalization of Foreign Public Documents. (fn3)
A. Cavendish-Pell v. Howell (fn4)
Once again, a "garden variety" lawsuit went awry because the plaintiff failed to take proper steps to effect service of
process. Plaintiff was a Connecticut resident who entered into a joint venture with a resident of the United Kingdom to develop a parcel of land in Stamford. Instead of serving the complaint pursuant to the Hague Convention on the Service Abroad of judicial and Extra-judicial Documents in Civil or Commercial Matters ("Hague Service Convention"), (fn5) as required by Section 52-59d of the General Statutes, (fn6) plaintiff served by mail pursuant to Section 52-59b of the General Statutes. Because plaintiff did not comply with the Hague Service Convention, the case was dismissed.
The court's opinion includes an excellent discussion of the interpretation of Article 10(a) of the Hague Service Convention, which reads in pertinent part, "provided the state of destination does not object, the present convention shall not interfere with: (a) the freedom to send judicial documents, by postal channels, directly to persons abroad . . . ." The majority rule and the better reasoned decisions hold that the word "send" is not the equivalent of "serve process." (fn7) This provision was intended to preserve a plaintiff's right to send documents overseas by postal channels after initial service is made. It cannot be used as a basis for initial service.
B. Itoba Ltd. v. LEP Group (fn8)
Defendant Grant was a resident of the United Kingdom, which is a party to the Hague Service Convention. In an action for damages under the Securities Exchange Act of 1934 and Rule lOb-5 in the United States District Court, plaintiff failed to serve defendant Grant in accordance with the Hague Service Convention but defendant Grant took three years to object to this failure.
Applying Rule 12(h) of the Federal Rules of Civil Procedure, judge Eginton ruled that the defect in service of process was waived by being omitted from a previous mot-ion to
dismiss. The fact that service was required to be made as provided in a treaty does not excuse the parties from complying with the Federal Rules of Civil Procedure.
C. DiMartino v. Eric Riebling Company (fn9)
Plaintiff brought this action in Connecticut superior court for personal injuries suffered because of an alleged design defect in a drilling machine. The drilling machine was manufactured by a German corporation, although it was leased from a New York corporation and used in Connecticut. One of the defendants was the German manufacturer, which was served pursuant to Section 33-411 (c) of the General Statutes. (fn10)
Once jurisdiction based upon constructive service is contested, the plaintiff has the burden of proof. (fn11) The plaintiff did not oppose the motion to dismiss. Under the revised Practice Book, the court must review the merits of the motion instead of granting the motion "by consent." Even though they clearly applied, the court did not...
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