17
Chapter 3
Court Procedures
Case 3.1
146 Cal.App.4th 488, 52 Cal.Rptr.3d 862, 07 Cal. Daily Op. Serv. 109, 2007 Daily Journal D.A.R.
133
Alan C. CRUZ, Plaintiff and Appellant,
v.
FAGOR AMERICA, INC., Defendant and Respondent.
In order to resolve the question whether service of process was effective, we must determine whether Cruz met the statutory
requirements for serving an out-of-state corporation by mail. Cruz addressed and mailed the summons and complaint, return
receipt requested, to Fagor’s president. The return receipt was signed by an individual who was not Fagor’s president. **865
18 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
A.
Factual background
Cruz’s parents purchased a pressure cooker from a vendor at the San Diego County Fair in the summer of 2001. On September
10, 2001, Cruz, who was 16 years old at the time, suffered burns on the left side of his torso and thigh when he attempted to take
the lid off of the pressure cooker. Fagor is the American distributor of the pressure cooker.
This fact is taken from Fagor’s respondent’s brief and is not found in the record on appeal.
December 14, 2004, Cruz, through his attorney, mailed the summons and complaint to Fagor by certified mail, return receipt
requested. The envelope was addressed to “Patricio Barriga, Chairman of the Board, FAGOR AMERICA, INC., A Delaware
Corporation, 1099 Wall Street, Lyndhurst, NJ 07071-3678.”
*494 The return receipt indicates that it was signed by an individual named Tina Hayes on December 22. Fagor did not file an
answer. On February 9, 2005, Cruz mailed a copy of his request for entry of default to “Tina Hayes, Authorized Agent for, Patricio
The trial court granted Fagor’s ex parte request, and Fagor filed its moving papers on November 30, 2005. In response to Fagor’s
motion, Cruz’s attorney filed a declaration in which he stated that he had spoken with a United States Postal Service employee in
Lyndhurst, New Jersey, who informed him that Hayes was an employee of Fagor, and that she regularly received mail on behalf of
the corporation. Fagor submitted the declaration of Patricio Barriga in which he avers that he never received the summons and
complaint.
reasons set forth below, we conclude that the trial court abused its discretion in setting aside the default and default judgment.
A.
The trial court erred in setting aside the default and default judgment on the ground that the judgment was void due to
ineffective service
Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only
after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a
1.
Standard of review
Initially, we address Fagor’s contention that the trial court’s decision to set aside a default judgment should be reviewed for an
abuse of discretion. The inclusion of the word “may” in the language of makes it clear that a trial court retains discretion to grant
or deny a motion to set aside a void judgment. However, the question in this appeal is not whether or not the trial court abused its
discretion when it decided to set aside the default judgment, but whether or not the default and default judgment were in fact void.
A trial court has no statutory power under *496 to set aside a judgment that is not void: Once six months have elapsed since the
entry of a judgment, “a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face.” )
We review de novo a trial court’s determination that a judgment is void.
2.
Cruz properly served Fagor with the summons and complaint
“ ‘A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll.’
[Citation.] In a case in which the defendant does not answer the complaint, the judgment roll includes the proof of service.
[Citation.]” Fagor contends, and the trial court found, that service was not effected because there was no proof that the
summons and complaint (1) were served on Fagor’s designated agent for service; (2) were delivered to the president or other
[¶ ] … [¶ ]
“To the president or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant
treasurer, a general *497 manager, or a person authorized by the corporation to receive service of process.” (.)
The trial court concluded that there was no proof that the summons and complaint were “delivered to the president or other officer,
manager, or person authorized to receive service in accordance with ,” and that this meant that service had not been properly
effected. Our review of the record establishes that the trial court erred in making this determination.
The trial court also concluded that there was no proof that the summons and complaint were served on Fagor’s agent for
A number of documents in the record establish that Cruz properly served Fagor with process pursuant to California’s statutory
requirements. The first is a Judicial Counsel of California proof of service form, completed and signed by Cruz’s attorney, Harold
Thompson. In that form, Thompson states that the summons and complaint were addressed and mailed to Patricio Barriga, the
president of Fagor, at 1099 Wall Street, Lyndhurst, New Jersey 07071-3678, which is the address Fagor listed in 2003 with the
New York State Department of State-Division of Corporations as its “service of process address.”
submitted a signed return receipt to establish the fact of actual delivery. A return receipt attached to the proof of service form
shows that the envelope was accepted at the Lyndhurst address. The receipt was signed by Hayes. Fagor argues that Cruz has
not established that Hayes was authorized to receive service of process on behalf of the corporation and, therefore, that Cruz
failed to present satisfactory evidence of actual delivery to the person to be served. However, Cruz did present evidence that
Hayes was authorized to receive mail on behalf of the defendant. This evidence is sufficient to meet the requirements of . In the
the defendant’s behalf.
In this case, Cruz submitted the declaration of his attorney, Harold Thompson, in which Thompson states that he confirmed with a
representative of the United States Postal Service in Lyndhurst, New Jersey, that Hayes regularly receives mail on behalf of Fagor
at its Lyndhurst office. This is similar to the evidence that was presented in and is sufficient to *499 establish that an agent
authorized to receive mail on the defendant’s behalf received the summons and complaint. Moreover, there is no evidence to the
CHAPTER 3: COURT PROCEDURES 21
received by defendant, or that he was unaware of the action pending against him. Defendant, having the clear opportunity to
refute what otherwise appears to be competent evidence that [it] was served with process, has failed to do so.”
Although Barriga does state in his affidavit that he did not receive the summons or complaint, this is insufficient to take this case
outside of the holding in Hayes received the summons and complaint. By virtue of her authority to accept mail on Fagor’s
behalf, Hayes’s notice of the action is imputed to Fagor and its officers. (See Barriga’s statement that he did not receive the
summons and complaint does not establish that service of process was invalid. Barriga had constructive knowledge of the
disagree with Fagor’s application of that case to the situation here. A close reading of establishes that the holding in that case
supports Cruz’s position, not Fagor’s.
In the appellate court concluded that a default judgment was void due to defective service of process. In reaching this
conclusion, the court relied solely on the fact that the plaintiff had failed to meet the requirements of section 415.50 because he
had not addressed the envelope containing the summons and complaint to the “person to be served,” as is required under that
by someone other than a corporate officer. According to Dill, the fact that the person signed the receipt as an “Agent” meant that
the summons had been received by a “person designated as agent for service of process” () or a “person authorized by the
corporation to receive service of process” (). The appellate court disagreed, concluding that the only evidence that tended to prove
agency was the signature on the postal receipt, and that an extrajudicial statement of a person claiming to be an agent was not
*501 admissible to prove the fact of agency unless the statement was made in the presence of the principal or communicated to
circumstance such as exists in this case, a different result would be required: “Nevertheless, the dissent worries that unless we
deem receipt signers such as Warner to have the ostensible authority to accept service of process, it will be ‘difficult, if not
impossible, to effectively serve foreign corporations by mail.’ (Dis. opn. [of Mosk, J.], We disagree.
Had Dill addressed the
envelope containing the summons to one of the persons to be served, the service by mail would have been effective.
If the
22 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
Contrary to Fagor’s assertions, the facts of this case are also distinguishable from those in In the return receipt from the
summons and complaint was signed by two persons other than the addressee defendant. The plaintiff in had addressed the
summons and complaint to the defendant, but at an incorrect apartment number. There was no evidence as to whom the
signators were or what the nature of their relationship to the defendant was, if any. Moreover, the defendant submitted a
declaration in which he asserted that he had never been served with the summons and complaint, that he had not authorized
granting relief in this case. “Extrinsic mistake” refers to circumstances outside of the litigation that have prevented a party from
obtaining a hearing on the merits. “[A] trial court may … vacate a default on equitable grounds even if statutory relief is
unavailable. [Citation.]”
*503 A challenge to a trial court’s order on a motion to vacate a default on equitable grounds is reviewed for an abuse of discretion.
Cruz contends that the trial court abused its discretion in granting Fagor equitable relief from the default and default judgment on
In its order, the trial court asserts in a conclusory manner that Fagor “submitted evidence” that “it has a meritorious defense, there
is a satisfactory excuse for its failure to present [a] timely defense, and it was diligent in seeking to set aside the default.” Putting
aside the issue whether Fagor established that it has a meritorious case, we conclude that Fagor failed to articulate a satisfactory
excuse for not presenting a defense to the original action, and also failed to demonstrate diligence in seeking to set aside the
default once it learned of it. Because the record does not support the trial court’s assertions in this regard, we must conclude that
the trial court abused its discretion in determining that equitable relief was appropriate in this case.
1.
Fagor presented no satisfactory excuse for its failure to defend against the action
“Although the policy of the law is to favor a hearing on the merits of a case, courts are not required to set aside default judgments
for defendants who flagrantly ignore the responsibility to present a defense. The burden of a *504 party who has had a default
entered against him is not limited to merely articulating the existence of a meritorious case. The defendant must also demonstrate
CHAPTER 3: COURT PROCEDURES 23
notified of the pending lawsuit by mail, and a Fagor employee who was authorized to receive mail on Fagor’s behalf received and
accepted the summons and complaint. This evidence is sufficient to establish that, at a minimum, Fagor had constructive
knowledge of the fact that the lawsuit had been filed. In light of this evidence, Fagor was required to present evidence sufficient to
establish that through some error not attributable to its own handling of the matter, Fagor did not receive actual notice of the
lawsuit. It did not do so. Barriga does not state in his declaration that he was unaware of the lawsuit or that he had no
Cruz’s proof of service there existed a presumption of constructive notice to the corporation and its officers. The burden thus
shifted to Fagor to establish that otherwise valid service of process did not result in actual notice to the corporation. Again, Cruz
provided evidence that Hayes was a Fagor employee who was authorized to receive mail for the defendant. Fagor did not rebut
this evidence with a declaration stating that any of the evidence Cruz provided relating to Hayes was inaccurate, and there is no
other indication in the record that Hayes was not a Fagor employee or that she was not authorized to receive mail on Fagor’s
mail on behalf of the company, Fagor has failed to come forward with a satisfactory excuse for its failure to present a defense to
the action in a timely **875 manner. The fact that the internal mail handling procedures of a company may have resulted in the
misplacement of documents that the evidence establishes were delivered to the company is not a sufficient excuse.
There are significant policy reasons for placing the burden of ensuring proper internal document delivery on corporate
defendants rather than on plaintiffs. In virtually every situation in which service of process on a foreign corporate
24 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
employees who receive the mail to withhold or destroy the documents rather than pass them along to the addressee.
*506 At a minimum, Fagor was made aware of Cruz’s request for entry of default at some time before February 22, 2005, when
Ramos forwarded the notice of default to Fagor’s insurance broker, which was prior to the time default was entered on February
25. It has offered
no
excuse as to why it made no attempt to defend the action or to specially appear once it admittedly had notice
of the possibility of entry of default.
Fagor has not established that there was any
extrinsic
mistake that prevented it from defending against Cruz’s lawsuit. Rather,
2.
No evidence of diligence after notice of default
Even if Fagor had provided a sufficient excuse for its failure to defend against Cruz’s action in the first place, it did not establish
that it acted diligently in attempting to set aside the default after learning of it. Specifically, there is no evidence to support Fagor’s
assertion, or the trial court’s conclusion, that Fagor acted diligently upon receiving notice of the action and potential default in
February 2005. The court relied on the declarations of Ramos and Kathy Heaning, Fagor’s insurance broker, to support its
interest would be protected by [its] insurance broker and carrier.” Citing Fagor asserts that even though it “may have received
subsequent notices regarding the default,” it was nevertheless “under the reasonable impression [its] insurance company was
protecting [its] interest.”
“Where a default is entered because defendant has relied upon a codefendant or other interested party to defend, the question is
whether the defendant was reasonably justified under the circumstances in his reliance or whether his neglect to attend to the
defendant cannot reasonably rely on the third party’s continued assurances in light of contrary information showing the third party
is providing no defense. [once defendant received notice of entry of default, reliance “upon the representations of the attorney
that all was well” was unreasonable].)
The record in this case does not support the conclusion that Fagor’s reliance on its broker and/or insurance carrier was
reasonable. Fagor claims that “[i]t was not until receiving the notice of levy from Target and JC Penny [
sic
] in November 2005
October 24, 2005, Cruz mailed Fagor a document entitled “Memorandum of Costs after Judgment,” which indicated that a
judgment had been entered and that Cruz was seeking more than $10,000 in interest. Still, Fagor did nothing.
Fagor could not reasonably believe its insurer was defending against the default while it was receiving repeated indications that the
insurer was not. (See compare with Fagor nevertheless waited until late November 2005-nine months after it admits it was
aware that Cruz was seeking entry of default-before taking any action in this case, and then took action only when it faced a levy
the accounts receivable of Fagor in November 2005.” In the next sentence, however, Fagor claims that “[a]t no time ... has Fagor
attempted to avoid service of process or otherwise not respond to appellant’s claim.” In support of this statement, Fagor cites to
Barriga’s declaration, in which he states that Fagor “did not, at any time, avoid and/or ignore service of the Summons and
Complaint.” This conclusory statement is not supported by other evidence in the record. There is no evidence that Fagor even
inquired about the status of the case at any point after having been notified that a default had been requested. On this record, we
unreasonably in not filing the motion to set aside the default judgment earlier.” As we have already determined, Fagor acted
unreasonably in failing to take any action to set aside the default and the default judgment once Fagor learned of their existence.
Moreover, the record does not establish that Cruz would suffer no prejudice as a result of Fagor’s inexcusable delay.
A review of the record demonstrates that Cruz diligently attempted to receive compensation from Fagor’s insurance company
during the period of time between the incident and the filing of the complaint in this case. It was not until after counsel for Cruz
Case 3.2
Ky.,2010.
Blankenship v. Collier
302 S.W.3d 665
Supreme Court of Kentucky.
Robert M. BLANKENSHIP, M.D., Appellants,
And Caritas Health Services, Inc., d/b/a Caritas Medical Center
v.
Horace COLLIER, Appellee.
Nos. 2007-SC-000916-DG, 2007-SC-000921-DG.
request for an extension for more time to locate and identify an expert, Collier still had failed to provide the names of any expert
witnesses more than one year following the filing of the complaint. Because under Kentucky substantive law Collier would be
unable to sustain his burden of proof without expert testimony, the trial court granted Dr. Blankenship’s and Caritas’s motions for
summary judgment. After the Court of Appeals reversed the trial court’s grant of summary judgment, this Court granted
discretionary review.
In this case, the issue before this Court is not simply whether Collier had failed to establish a genuine issue of material fact at the
time Dr. Blankenship and Caritas filed their summary judgment motions-without a doubt, there is no genuine issue of material fact
in the record because Collier has no expert to support his claim of medical negligence. Rather, the more specific issue is whether
the trial court was correct to take up the defendants’ summary judgment motions and enter a ruling when it did and, secondarily,
whether the court was required first either to enter a separate order requiring Collier to obtain expert testimony or to enter an order
sanctioning Collier for failing to meet the court’s expert disclosure deadline.
Having carefully reviewed the record, we conclude that the defendants’ summary judgment motions were properly before the trial
CR 37.02), the trial court was not required to enter a sanctions order prior to granting the defendants’ summary judgment motions.
Thus, the Court of Appeals opinion is reversed, and the Jefferson Circuit Court’s summary judgments granted to Dr. Blankenship
and Caritas are reinstated.
RELEVANT FACTS
On February 17, 2004, Collier was admitted to Caritas Medical Center in Louisville, Kentucky, after suffering from abdominal pain.
Collier to disclose his expert witnesses by January 30, 2006, and scheduled the case for jury trial on October 10, 2006. On
February 2, 2006, two days after the expert disclosure deadline, Collier filed a motion with the court requesting a thirty-day
extension. In his motion, Collier stated that he was moving “the Court for an extension of time to identify and disclose the expert
witness(es) who will offer expert opinion(s) at the trial of this matter.” Without an objection from the defendants, the trial court
granted Collier’s request and extended the plaintiff’s expert disclosure deadline to February 28, 2006.
defendants were entitled to summary judgment as a matter of law.
Collier appealed the trial court’s grant of summary judgment to the Kentucky Court of Appeals. Relying primarily on
Baptist
Healthcare Systems, Inc. v. Miller,
177 S.W.3d 676 (Ky.2005), the Court of Appeals reversed. The Court of Appeals explained that
Baptist Healthcare
outlines a procedure to be used when trial courts are deciding summary judgment motions in medical
malpractice cases and that the trial court did not follow that procedure in this case. Applying
Baptist Healthcare, supra,
the Court of
28 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
[5] Dr. Blankenship and Caritas contend that the Court of Appeals erred in applying cases that involved a legitimate dispute about
the need for expert witnesses because, in this case, Collier never disputed that expert medical testimony was required. In
response, Collier contends that
Baptist Healthcare, supra, Ward v. Housman,
809 S.W.2d 717 (Ky.App.1991), and
Poe v. Rice,
706 S.W.2d 5 (Ky.App.1986), are on-point with the facts of this case and mandate a reversal of the trial court’s grant of summary
judgment. However, each of these cases cited by Collier differs from the facts of this case and none addresses the common
scenario presented here.
into the latter, somewhat rare, category while Collier’s case fits into the former, much more common, category wherein expert
testimony is essential.
In
Baptist Healthcare,
177 S.W.3d at 678, the plaintiff, Ms. Miller, experienced nerve damage after the hospital’s phlebotomist FN1
left a tourniquet on her arm for over ten minutes while she was having blood drawn at Central Baptist Hospital. Ms. Miller
subsequently brought an ordinary negligence claim against the hospital. Prior to trial, Baptist Healthcare moved for summary
in a training manual and that a medical expert was not needed, the trial court disagreed. The court held that medical standard of
care testimony was necessary, denied the hospital’s summary judgment motion, and gave Ms. Miller a thirty-day continuance to
identify an expert.
Id.
Ms. Miller secured an expert and the case was tried, resulting in a verdict for the plaintiff.
FN1. A phlebotomist is a person who is trained in withdrawing blood from a person’s vein through an incision or a needle
puncture.
Stedman’s Medical Dictionary
(27th ed. 2000).
681. Second, this Court concluded that the trial court did not err in denying Baptist Healthcare’s motion for summary judgment
even though at the time the motion was made, the record reflected that Ms. Miller had no expert witness to establish the medical
Id.
at 681. Because Ms. Miller had disputed the need for expert testimony in her case and had a reasonable basis to do so, this
Court held that the trial court proceeded correctly by first making a separate ruling on the necessity of an expert witness and then
giving Ms. Miller a reasonable amount of time to identify an expert before ruling on Baptist Healthcare’s summary judgment motion.
Id.
[7] The
Baptist Healthcare
Court reiterated it would have been clearly inappropriate for the trial court to grant summary judgment
because at the time the defendant filed its motion, the trial court had not even resolved the “dispute as to the need for an expert.”
“expert witness(es) who will testify has/have not been determined.” In addition, Collier filed the aforementioned written motion with
the trial court requesting “an extension of time to identify and disclose the expert witness(es) who will offer expert opinion(s) at the
trial of this matter.” Only when Collier was facing a summary judgment motion for not identifying any experts did he argue for the
first time that he could meet his burden of proof without expert testimony. Collier’s belated response, when considered in the
context of the medical malpractice claims he stated in his complaint, simply did not create a legitimate dispute about the need for
symptoms of appendicitis and whether Dr. Blankenship breached it. In the trial court, in his response to the defendants’ summary
judgment motions, Collier also argued that an expert was not needed in this case because a breach of the medical standard of
care occurred when his abdominal x-ray was left unattended instead of being scanned promptly into a computer database.
However, even this allegation of negligence would have required a medical expert to testify regarding the standard of care for
handling, storing, and reading x-rays; any breach that may have occurred here; and how such breach caused injury to Collier.
Simply put, Collier failed to timely dispute the need for expert testimony and because Collier did not have a reasonable basis to do
so, the trial court did not abuse its discretion in deciding to rule on the summary judgment motion without first entering an order
declaring that experts were necessary.
[8] In order to give guidance to the bench and bar regarding this recurring issue, we reiterate that where a plaintiff does create a
legitimate dispute about the need for an expert witness prior to the expiration of the court’s expert disclosure deadline, the trial
court should first make a separate ruling on that issue,
i.e.,
the need, or lack of need, for expert testimony in the case. If the court
determines within its discretion that an expert is needed, it should give the plaintiff a reasonable amount of time to identify an
30 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
the trial court entered a scheduling order, setting the trial date for September 5, 1989, and requiring the Wards to disclose expert
witnesses by October 31, 1988. 809 S.W.2d at 718. Nine months passed after the disclosure deadline without any pertinent
In concluding that the trial court improperly granted summary judgment, the
Ward
Court held that the trial court did not dismiss the
case because it lacked a genuine issue of material fact, but rather, because the Wards had not complied with a scheduling order.
The Court of Appeals distinguished the Wards’ case from one in which the plaintiff never discloses an expert, noting that “the case
at hand was not one where the dismissed party had no expert but [instead] was [one where the dismissed party was] prevented
from using the expert’s testimony as a sanctioning technique for the dilatory conduct of the Wards’ counsel.”
Id.
To reiterate, Ward,
FN2. We deliberately refrain from setting any time lines for identification of expert witnesses because each case must be
considered by the trial court on a case-by-case basis. In this case, Collier was given adequate time.
Poe v. Rice
is also distinguishable from the case at hand. After Ms. Poe initiated a medical malpractice action against Dr. Rice, he
requested through interrogatories that Poe disclose her expert witnesses. 706 S.W.2d at 6. In her replies, Poe repeatedly objected
to “producing” her expert witnesses at that time (for reasons not explained in the opinion), but continued to maintain their
30, 2005 Civil Jury Trial Order, and he specifically requested an extension of that deadline to locate a potential expert. Unlike Poe’s
objections to Dr. Rice’s requests, Collier never objected to the court-ordered expert disclosure deadline and never suggested, until
his response to the motion for summary judgment, that his was the type of medical malpractice case that did not require expert
testimony.
[10] Finally, while CR 37.02 allows a trial court to enter an order sanctioning a party for failing for failing to provide or permit
discovery, there is no requirement that a party first be sanctioned under CR 37.02 before the trial court grants a properly supported
medical malpractice case is required by law to put forth expert testimony to inform the jury of the applicable medical standard of
care, any breach of that standard and the resulting injury.
Perkins v. Hausladen,
828 S.W.2d at 655. A jury trial without the
requisite proof is a futile exercise, wasteful of judicial time, jurors’ time and the litigants’ time and resources. CR 56 is intended to
avoid such unnecessary proceedings.
Neal v. Welker,
426 S.W.2d at 479-480 “the curtain must fall at some time upon the right of
a litigant” to put forth the most basic level of proof and the plaintiff’s bare assertion “that something will turn up’ cannot be made
CR 56.03, that without expert testimony there was no issue of material fact and, as a matter of law, Collier could not sustain his
burden of proof. Although Collier asserts that the trial court should have followed the procedure in
Baptist Healthcare, supra,
and
first entered a separate ruling regarding whether experts were needed before ruling on the defendants’ summary judgment motion,
Case 3.3
E.D.N.Y.,2007.
Novak v. Tucows, Inc.
Not Reported in F.Supp.2d, 2007 WL 922306 (E.D.N.Y.), 73 Fed. R. Evid. Serv. 331
United States District Court,
FN1. Tucows, Inc. does business under the name OpenSRS; however, there is no legal entity by the name of OpenSRS
that is connected with Tucows. (Lazare Decl., ¶ 3; Tucows’ Br., at 6 n. 6.) Therefore, this Court shall consider Tucows,
Inc. and OpenSRS as a single entity.
Presently before the court are defendants’ motions to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(3), on the basis of
improper venue, or, in the alternative, under Fed.R.Civ.P. 12(b)(6) and 12(b)(1), on the grounds that plaintiff fails to state a federal
supplies and livestock via his website.(
Id.
¶ 124.) According to Novak, his website was the fourth most-visited pet-supply-related
site in the United States during 1999. (
Id.
¶ 5.) On July 30, 2001, Novak trademarked the domain name “petswarehouse.com” and
was awarded trademark number 2,600,670. (
Id.
¶ 36.)
On February 11, 2003, in the Circuit Court of Colbert County, Alabama, an individual named John Benn obtained a default
judgment against Novak in the amount of $50,000. (
Id.
¶ 37.) Faced with the prospect of litigation in Alabama, Novak, a New York
Ex. C.) On May 23, 2003, Tucows transferred control over the domain name to the Alabama court pursuant to the court’s order,
and access to Novak’s servers through the “petswarehouse.com” web address was suspended. (
Id.
¶ 47, 124; Ex. D.) Internet
users accessing “petswarehouse.com” were directed to a web page providing notice of the Colbert County Sheriff’s Sale of the
domain name pursuant to the Alabama trial court’s writ of execution. (
Id.
¶ 68; Ex. E .) On July 28, 2003, Benn purchased
“petswarehouse.com” in a public auction held by the Colbert County Sheriff, in which Benn was the only bidder. (
Id.
¶ 54.) On
Id.
¶
134.) Following transfer of the domain name, visitors to the website were directed to the sheriff’s notice of sale, and Novak was
CHAPTER 3: COURT PROCEDURES 33
On April 25, 2006, Novak, proceeding
pro se,
filed the instant complaint against defendants Tucows, Inc. and OpenSRS. By letter
dated May 11, 2006, defendant Tucows indicated its intention to move for dismissal on the basis of improper venue. Upon learning
of defendants’ proposed motion to dismiss, plaintiff modified his claims, adding Nitin as a defendant, and filed an amended
complaint on May 16, 2006. On July 10, 2006, defendants Nitin and Tucows moved to dismiss the complaint on the basis of
improper venue, or, in the alternative, failure to state a claim and lack of subject-matter jurisdiction. Plaintiff cross-moved to strike
the declarations and exhibits submitted by defendants in support of their motions to dismiss, and defendants moved to strike
certain of plaintiff’s exhibits. Oral argument and an evidentiary hearing were held on December 22, 2006, January 25, 2007 and
February 9, 2007.
II. EVIDENTIARY OBJECTIONS
A. Plaintiff’s Motion to Strike
1. General Objections to Admissibility of Foreign Declarations
2. Objections to the Lazare Declaration
According to plaintiff, the Lazare declaration is also defective in failing to authenticate the attached Exhibits J-L as business
records. The contested exhibits include: Exhibit J, excerpts from the registrar’s agreement between Tucows and ICANN, the non-
profit corporation that administers the internet domain name and internet protocol number system; Exhibit K, excerpts from
3. Objections to the Pirogov Declaration
Novak argues that the Pirogov Declaration lacks personal knowledge, expresses “expert opinion” testimony, and includes hearsay.
Pirogov, Team Leader of the OpenSRS Development Team since October 2003, asserts in his declaration that his duties include
“supervision of the software development that allows Tucows to process transfers, and maintenance of the logs that archive prior
34 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
FN2. At the evidentiary hearing, Eliot Noss, CEO of Tucows, testified regarding a series of additional exhibits that recreate
the steps taken during Novak’s transfer of the domain name “petswarehouse.com” based upon information stored in
Tucows’ databases. This Court ruled that such exhibits were, in fact, admissible for purposes of showing the transfer
steps specific to the transaction in question:
4. Objections to the Agarwal Declaration
Novak argues that the declaration submitted by Nitin Agarwal (“Agarwal”), CEO and founder of Nitin, contains impermissible
hearsay and is not based on personal knowledge. The Court finds, based upon Agarwal’s position, that he had personal
FN3. During the evidentiary hearing, plaintiff cross-examined Agarwal regarding paragraph 4 of his declaration, and
Agarwal affirmed “I stand by the full sentence of the statement.” (Jan. 25, 2007 Tr. 87.)
B. Defendants’ Motion to Strike
Defendants contend that plaintiff’s Exhibits B, J, K, O-R, U and V, which are printouts of internet pages, constitute inadmissible
hearsay and do not fall within any acknowledged exception to the hearsay rule.FN4 At the evidentiary hearing, defendants objected
FN4. During the evidentiary hearing, defendant Tucows also objected to the admission of plaintiff’s Exhibit S, a document
titled “OpenSRS Quickstart Instructions,” and dated January 2001, on the basis that the exhibit had not been
authenticated by Tucows. (Jan. 25, 2007 Tr. 46-50.) By letter dated January 30, 2007, Tucows withdrew its objection
based upon the authenticity of Exhibit S. (Tucows’ January 30, 2007 Letter, at 2.) However, Tucows “reserve[d] the right
to argue the immateriality of the document, based both on its contents and the relevance of the 2001 document to events
FN5. The Court notes that, even if all of plaintiff’s exhibits were admissible, they would not impact the Court’s analysis or
conclusions on the substantive issues in the instant case.
III. STANDARD OF REVIEW
Defendants challenge venue in this case pursuant to Federal Rule of Civil Procedure 12(b)(3). However, the Court must first
492-93 (S.D.N.Y.2006) ( “Here, the issue will be considered under Fed. Civ. P. Rule 12(b)(3) because that is how it was framed by
the parties.”) (citing
J.B. Harris, Inc. v. Razei Bar Indus., Inc.,
37 F.Supp.2d 186, 189 (E.D.N.Y.1998) (“The Court does not decide
whether this issue might more properly have been raised by way of Rule 12(b)(6), as the issue is squarely framed by Defendants
under Rule 12(b)(3) and Plaintiff does not argue that this is an improper procedural mechanism.”) (internal citation omitted)).
Without resolving the question of whether to treat the motion to dismiss as a 12(b)(1) or 12(b)(3) motion, the Second Circuit held in
evidentiary hearing…. [A] party seeking to avoid enforcement of such a contractual clause is also entitled to have the facts viewed
in the light most favorable to it, and no disputed fact should be resolved against that party until it has had an opportunity to be
heard.”) (citations omitted);
Gulf Ins. Co.,
417 F.3d at 355 (“[I]f the court holds an evidentiary hearing … the plaintiff must
demonstrate [venue] by a preponderance of the evidence.”) (quoting
CutCo Indus.,
806 F.2d at 364-65) (additional citation
omitted);
Murphy v. Schneider Nat’l, Inc.,
362 F.3d 1133, 1139 (9th Cir.2004) (“To resolve such motions when genuine factual
action relating to this agreement must be brought in Ontario
and you irrevocably consent to the jurisdiction of such courts.
(Pirogov Decl., Ex. H.) The legal effect of a forum selection clause depends upon “whether its existence was reasonably
communicated to the plaintiff.”
Effron v. Sun Line Cruises, Inc.,
67 F.3d 7, 9 (2d Cir.1995) (citations omitted). “A forum selection
clause stated in clear and unambiguous language ... is considered reasonably communicated to the plaintiff in determining its
enforceability.”
Vitricon, Inc. v. Midwest Elastomers, Inc.,
148 F.Supp.2d 245, 247 (E.D.N.Y.2001) (
citing Efron,
67 F.3d at 9). As