ORDER
On September 14, 1993, one of the Defendants in the above-entitled cause, Eberhard Schmidt-Offhaus, filed a Motion to Dismiss against the Plaintiffs, John Frederick and Frederick Company, contending that the service of process upon him was invalid. On October 15, 1993, Schmidt-Offhaus and another Defendant, Hydro-Aluminum, s.a., filed a Motion to Dismiss, in which they jointly allege that this Court does not have
I
On November 8,1988, Frederick Company entered into a Sales Representation Agreement (Agreement) with Bohn Aluminum and Brass Division of Wickes Manufacturing Company (Bohn Aluminum-Wickes). In August 1990, Hydro-Aluminum s.a. of Europe (Hydro-Aluminum) purchased the manufacturing facilities of Bohn Aluminum-Wickes in Adrian and Holland, Michigan. These manufacturing facilities were subsequently transferred to Hydro-Aluminum Bohn (HAB), a company that had been established by Hydro-Aluminum. As a result, HAB became the assignee of the Agreement between Frederick Company and Bohn Aluminum-Wickes and assumed all of its legal and fiscal responsibilities.
Thereafter, HAB encountered some production problems in meeting its obligations to one of its customers, TRW, with whom it had contracted to manufacture automotive air bags. In an effort that was ostensibly designed to permit HAB to continue the manufacture of its products for TRW, Frederick Company made arrangements with Pohlman, Inc. (Pohlman) to perform all of the necessary machining operations. As compensation for its services, Frederick Company was to receive a two and one-half percent (2]/¿%) sales commission from Pohlman on the shipment of all of its aluminum products, processes, and assemblies to HAB or TRW.
However, the Plaintiffs did not receive the agreed upon compensation. They claim that it was improperly withheld because (a) Frederick Company was induced to decline its Pohlman commissions by Theodore DiGui-seppe, an agent of Hydro-Aluminum, and (b) HAB developed a scheme in which the assembly and processing of the aluminum products was wrongfully diverted to Pohlman who, in turn, assembled the final product for TRW.
On February 12,1993, the Plaintiffs filed a lawsuit in this Court against the Defendants, alleging, among other things, a breach of contract and the tortious interference with an existing contract. Four days later, they initiated legal proceedings in the Oakland County Circuit Court of Michigan against HAB, Richard Boehman and Theodore DiGuiseppe. However, this state court action was dismissed because of a clause in the Agreement which required the parties to submit their differences to an arbitrator.
The motions by Hydro-Aluminum and Schmidt-Offhaus are now before the Court for resolution.
II
In his motion to dismiss, Schmidt-Offhaus claims that the service of process upon him is legally defective because the summons and complaint were not served in a manner as required by the Hague Convention
The Plaintiffs challenge Schmidt-Offhaus’ argument. It is their position that (1) he was personally served
Fed.R.Civ.P. 12(b)(5) permits a party to raise the defense of insufficiency of service of process in a motion to dismiss. When the validity of the service of process is contested, the plaintiff bears the burden of proving that proper service was effected. Aetna Business Credit, Inc. v. Universal Decor & Interior Design, Inc.,
Schmidt-Offhaus argues that the laws of Germany require personal service upon the individual who has been named in the summons and complaint. However, the Plaintiffs insist that personal service was effectuated upon Schmidt-Offhaus, as demonstrated by the certificate which reads, in part, that “[t]he documents referred to in the request have been delivered to: ... Mr. Eberhard Schmidt-Offhaus (personally).” (Plaintiffs’ Response, Exhibit 1 at English translation of Certificate.) In juxtaposition to the Certificate by the judicial official is Schmidt-Offhaus’ affidavit in which he denies personal service.
This Court, having received additional documentation with regard to this issue
In the case at bar, the Plaintiffs argue that Schmidt-Offhaus has been sued in his capacity as an employee of Hydro-Aluminum and for those actions that were taken by him during the course of his employment, all of which should be attributed to his employer. (Plaintiffs’ Supplemental Memorandum, January 3, 1993 at 2.) A review of the Complaint provides support for this contention. (Complaint at ¶¶ 42-44.)
Notwithstanding the foregoing, the Court also finds that on balance, more weight should be given to the affidavit of a judicial officer who is presumptively familiar with the requirements of the German Rules of Civil Procedure. Given the officer’s representations, the Court declares that service upon Schmidt-Offhaus was proper.
Having determined the issue relating to the sufficiency of service, this Court must now seek to determine whether the time restrictions in Fed.R.Civ.P. 4(j) are applicable to service under the Hague Convention. Rule 4(j) states:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. This subdivision shall not apply to service in a foreign country pursuant to subdivision (i) of this rule, (emphasis added).
Fed.R.Civ.P. 4(i)
In Lucas, the Ninth Circuit Court of Appeals held that the plain language of Rule 4(j) makes the 120-day service provision inapplicable to service in a foreign country.
However, the dicta in two other cases, Itel Container International Corp. v. Atlanttrafik Express Service, Ltd.,
In Itel Container, the Court noted that
Plaintiffs’ alternative argument, that Rule 4(j) does not apply here, poses a question of first impression. That question is whether service under the Hague Convention constitutes “service in a foreign country pursuant to [Rule 4(i) ]” within the meaning of Rule 4(j). A proposed amendment to Rule 4(i), which would explicitly add service “pursuant to any applicable treaty or convention” to the current enumeration of methods of service abroad*125 ... has not been adopted to date. That amendment, however, was simply “designed to clarify the applicability of the 1969 Hague Convention ... to international litigation under the federal rules.” ... It is the law in this circuit that valid service abroad pursuant to the Convention need not conform to the strictures of Rule 4. Ackermann v. Levine,788 F.2d 830 , 840 (2d Cir.1986)____ But see Int'l Controls Corp. v. Vesco,593 F.2d 166 , 179-80 (2d Cir.), cert. denied,442 U.S. 941 , 99 5. Ct. 2884,61 L.Ed.2d 311 (1979)....
It would appear incongruous if Rule 4(i), which implicitly contemplates service pursuant to treaty, should nonetheless, for purposes of Rule 4(j)’s time limitation, be deemed to exclude such service. The case at bar illustrates that service pursuant to the Hague Convention may be a time-consuming process even in an English-speaking jurisdiction____
Along similar lines, a district court for the Western District of Tennessee stated:
Even though the Hague Convention is a self-executing treaty, and thus is the law of the land, its terms should be viewed as complementary to the provisions of Rule 4. The Hague Convention carefully articulates the procedure which a litigant must follow in order to perfect service abroad, but it does not prescribe the procedure for the forum Court to follow should an element of the procedure fail. Rule 4 stresses actual notice, rather than strict formalism---- There is no indication from the language of the Hague Convention that it was intended to supersede this general and flexible scheme, particularly where no injustice or prejudice is likely to result to the party located abroad, or to the interests of the affected signatory country. The Hague Convention should not be construed so as to foreclose judicial discretion when such discretion needs to be exercised.
Fox v. Regie Nationale Des Usines Renault,
In contrast, the Chilean Nitrate court rejected such a relationship between the Hague Convention and Rule 4. The court summarized:
Plaintiff contends that because Rule 4(j) “shall not apply to service in a foreign country pursuant to subdivision (i) of this rule,” the 120-day requirement is inapplicable. The Court disagrees. The Harris [v. Browming-Ferris Industries Chemical Services, Inc.,100 F.R.D. 775 (M.D.La. 1984)] case has been construed by one court to mean that “the provisions of subdivision (i) apply only to service in a foreign country not covered by the Hague Convention.” Foster v. Dentaurum, Inc., Civ.A. No. 85-85-4432,1986 WL 20899 , at *1 (D.Kan., Sept. 17, 1986). In the case before this Court, service must be made pursuant to the Hague Convention, not pursuant to Rule 4(i). Therefore, the language in Rule 4(j) that exempts Rule 4(i) cases from the 120-day requirement does not apply.
Similarly, the Committee of Federal Courts of the New York State Bar Association opined:
[S]inee the Hague Convention is not one of the methods of service prescribed in Rule 4(i), it is not excepted from the requirement of Rule 4(j) that the summons and complaint be served within 120 days after the complaint is filed. Failure to meet that deadline will result in dismissal of the complaint — and loss of the right to pursue the action if the statute of limitations has run — unless an extension has been obtained under Rule 6(b) or good cause for the delay can be shown.
“Service of Process Abroad: A Nuts and Bolts Guide,”
Notwithstanding the presence of a treaty, the burdensome process of foreign service militates against the strict application of the one hundred twenty day limitation in this ease. Here, the Plaintiffs were obligated to (1) contact the Central Authority in Germany, (2) locate an available translator, (3) cause the pleadings in this case to be translated from English into German, (4) solicit the assistance of an international process server, APS International, and (5) procure an order from this Court that would request the assistance of a foreign government in obtaining service of the pleadings on Schmidt-Offhaus. (Plaintiffs’ Response at 7-8.) Moreover, even if the time limits were applicable to the circumstances in this case, these restrictions could be excused for good cause. Fed.R.Civ.P. 4(j).
Despite these actions and the Plaintiffs’ representations, the Defendants maintain that the expressed efforts do not establish diligence. This Court disagrees. The difficulties that were encountered by the Plaintiffs in obtaining a translator and securing orders from this Court for judicial assistance in the service of process, along with all of the other steps that were outlined on pages 7-8 of their response, demonstrate good cause why service was not made within the one hundred twenty day period. Hence, their inability to effectuate service upon Schmidt-Offhaus within a period of one hundred twenty days will be excused.
For the reasons that have been set forth above, this Court will deny Schmidt^Offhaus’ request to dismiss the Plaintiffs’ claims against him on the basis of an alleged procedural deficiency in the service of process.
Ill
In their Motion to Dismiss, the two Defendants contend that this Court lacks personal jurisdiction over Hydro-Aluminum because it does not have, and never had, sufficient contacts with the state of Michigan to make the exercise of personal jurisdiction reasonable.
For the purpose of this motion, the Plaintiffs have conceded that Hydro-Aluminum is not the parent company of HAB. (Plaintiffs’ Response at 5.) Nevertheless, they oppose the Defendants’ motion, asserting that Hydro-Aluminum has maintained a continuous, systematic business relationship with the State of Michigan. Hence, it is their position that the Defendants’ arguments relating to the lack of subject matter jurisdiction and res judicata/collateral estoppel matters are now moot.
In Davis v. A & J. Electronics,
Unless authorized by federal statute or another rule of civil procedure, a district court under Fed.R.Civ.P. 4(e) can exercise personal jurisdiction over a party who is not an inhabitant of or found within the state in which the federal court sits only if the party is subject to the jurisdiction of the courts of the state in which the district court sits.
Inasmuch as there is no federal statute which grants personal jurisdiction to the Court under the facts of this case, an examination of the Michigan “long-arm” statute, Mich.Comp.Laws Ann. § 600.715
This “long-arm” statute should be construed to extend the scope of jurisdiction as far as the due process clause of the Fourteenth Amendment will permit. LAK, Inc. v. Deer Creek Enterprises,
First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.
LAK, Inc.,
ensures that a defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts, or of the “unilateral activity of another party or a third person.” Jurisdiction is proper, however, where the contacts proximately result from the actions by the defendant himself that create a “substantial connection with the forum State.”
Conti,
Furthermore, the burden on the defendant in evaluating the reasonableness of the forum must be considered in light of (1) the forum
state’s interest in adjudicating the dispute, (2) the plaintiffs interest in obtaining convenient and effective relief, (3) the judicial system’s interest in obtaining the most efficient resolution of controversies, and (4) the shared interest of the several states in furthering substantive social policies. World-Wide Volkswagen Corp. v. Woodson,
In any event, the burden of establishing the existence of personal jurisdiction rests with the plaintiff. Chandler,
A
A review of the record in this case indicates that two potential bases exist upon which to establish personal jurisdiction over Hydro-Aluminum, i.e., (1) “the transaction of any business in the state” and (2) the “doing or causing any act to be done, or consequence to occur, in the state resulting in an action for tort.” Mieh.Comp.Laws Ann. § 600.715(l)-(2).
With respect to the first prong, the Plaintiffs claim that agents of Hydro-Aluminum participated in direct meetings with them in Michigan. In support of their position, they also point to numerous telephone conversations and correspondence between the parties. On the other hand, the Defendants’
However, the Plaintiffs have set forth sufficient facts to support the existence of the other basis for personal jurisdiction (i.e., causing consequences to occur in the state resulting in an action for tort). Specifically, they have alleged that Hydro-Aluminum’s inappropriate interference with its contractual relationship with Pohlman caused several consequences, including the loss of commissions, to occur in Michigan. These facts remain unchallenged. Thus, it would appear that Mich.Comp.Laws Ann. §§ 600.715(2) is triggered by the Complaint. Nevertheless, the due process limitations still apply and must be evaluated.
B
Applying the three part test in LAK (purposeful availment of the privilege of acting in the forum state or causing consequence in the forum state, the cause of action must arise from the defendant’s activities there, and the acts of the defendant or consequences must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable) to the facts in this case, it is clear that the exercise of personal jurisdiction over Hydro-Aluminum is improper at this time and would “offend traditional notions of fair play.”
Here, the Plaintiffs have not offered any factual support to support their contention that meetings between representatives of Frederick Company and Hydro-Aluminum took place in Michigan. However, Boehman attested that Hydro-Aluminum “has not conducted any business with the Plaintiffs in this matter.” (Boehman Aff. at ¶ 11, October 20, 1993.) Even viewing the facts in the light that are most favorable to the Plaintiffs, their bare allegation is insufficient to negate the affidavit and establish the presence of Hydro-Aluminum agents in Michigan during the times that are relevant to this controversy. Accordingly, the Court must now turn to the submitted correspondence and other documents in search of evidence that would demonstrate the existence of sufficient minimal contacts which would make the exercise of jurisdiction reasonable.
The Plaintiffs attached eighteen exhibits
Furthermore, although the letters suggest some connection between Hydro-Aluminum and Michigan, none of the correspondence was written by this corporate Defendant or its agents. As such, these letters do not unequivocally demonstrate a presence of the company in the United States. For example, a January 22, 1992 letter from TRW to HAB makes reference to a future meeting with Sehmidt-Offhaus. (Plaintiffs’ Response at Exhibit 12.) However, the Plaintiffs do not offer any verification that a meeting in Michigan did occur. Similarly, a letter from an employee of TRW, Robert E. Frownfelter, to Sehmidt-Offhaus on January 24, 1992 refers
Evidence, which confirms the representations in Exhibit 12 and 14, can be extrapolated from the deposition of Frownfelter who testified in a deposition that Schmidt-Off-haus had “travelled across the ocean to come and discuss this problem with me” when the manufacturing problems at HAB arose. (Frownfelter Dep. at 55, October 29, 1993.)
Frownfelter also testified that he believed that some of Hydro-Aluminum’s employees spent time at the Adrian facility. These statements suggest that Hydro-Aluminum sent some employees to Michigan. However, the Plaintiffs have not offered any reason for the presence of these employees which would satisfy the purposeful availment standard. Although this Court could engage in speculation as to the purpose of the Hydro-Aluminum employees in Michigan, the record fails to indicate that they did any work in Michigan.
Two of the proffered exhibits bolster the Plaintiffs’ position. (See Plaintiffs’ Response, Exhibits 2, 4.) Both letters were written by an agent of Hydro-Aluminum to individuals in Michigan. In one of the letters, the agent indicated that the company along with HAB and two other companies had decided to “continue present talks with TRW, make necessary organizational [sic] changes and small investments.” Id. at Exhibit 4.
It is well settled that a single contact with the forum state, which does not involve the physical presence of the defendant, can be a sufficient basis upon which to establish jurisdiction over the defendant. McGee,
The Plaintiffs’ next point to the affidavit of William MacDonald, another employee of TRW, who testified that Theodore DiGui-seppe was an agent of Hydro-Aluminum. However, his subsequent deposition testimony
Based on the foregoing, the Court is left with only two letters from Hydro-Aluminum upon which to find the requisite minimum contacts. Neither of these letters are sufficient to demonstrate that Hydro-Aluminum purposefully availed itself of the privilege of doing business in Michigan. Moreover, this cause of action does not arise from the letters. Thus, the second prong of LAK, Inc., remains unsatisfied. As such, this Court lacks personal jurisdiction over Hydro-Aluminum.
IV
For the reasons that have been set forth above, this Court determines that (1) service of process was properly effectuated on Schmidt-Offhaus, (2) personal jurisdiction over Hydro-Aluminum does not exist, and (3) the challenges to subject matter jurisdiction and the claims of res judicata/collateral es-toppel are now moot in view of the Plaintiffs’ concession for purposes of this motion that Hydro-Aluminum is not the parent of HAB. Accordingly, Schmidt-Offhaus’ Motion to Dismiss is denied, and the Defendants’ Motion to Dismiss for Lack of Jurisdiction is granted in part and denied in part.
IT IS SO ORDERED.
Notes
. The remaining Defendant, Pohlman, Inc., is not a parly to either of the motions that are now pending before the Court.
. Both parties agree that the Hague Convention governs the method of proper service in this case. The treaty provides, in relevant part, that:
Article 5
The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either—
(a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
(b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed....
Article 6
The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention.
The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered...
. In support of this position, the Plaintiffs offer the certification of a German judicial official who attested under oath that service of the summons and complaint was made upon Schmidt-Offhaus in compliance with the Hague Convention.
. At the conclusion of the oral arguments, the Court directed the Plaintiffs to file supplemental documentation to support their opposition to Schmidt-Offhaus’ claim of improper service.
. The Complaint alleges at the pertinent paragraphs that:
¶ 42. At all times relevant hereto, Eberhard Schmidt-Offhaus was an agent of Hydro-Aluminum s.a. of Europe.
V 43. Hydro-Aluminum s.a. of Europe and its agents and employees owed a duty to Frederick Company to refrain from interfering with Frederick Company's contracts with third parties and its relationships with third parties*124 which were to Frederick Company's prospective economic advantage. ¶44. Hydro-Aluminum s.a. of Europe and Eberhard Schmidt-Offhaus breached the aforesaid duties owed to Frederick Company....
. Fed.R.Civ.P. 4(i) reads, in pertinent part, that: When the federal or state law referred to in subdivision (e) of this rule authorizes service upon a party not an inhabitant of or found with the state in which the district court is held, and service is to be effected upon the party in a foreign country, it is also sufficient if service of the summons and complaint is made: (A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign authority in response to a letter rogatoiy, when service in either case is reasonably calculated to give actual notice; or (C) upon an individual, by delivery to the individual personally.
. Although the Defendants’ motion was filed on behalf of Hydro-Aluminum and Schmidt-Off-haus, none of their arguments specifically challenge the exercise of personal jurisdiction over Schmidt-Offhaus by this Court. Hence, this issue will not be addressed.
. According to the Plaintiffs, Hydro-Aluminum should not be considered a party to the contract
. However, if the court requires an evidentiary hearing and permits adequate discovery to prepare for that hearing, the plaintiff must establish such jurisdiction by a preponderance of the evidence. Serras,
. This statute reads in relevant part as follows: The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.
(3) The ownership, use, or possession of any real or tangible personal property situated within the state.
(4) Contracting to insure any person, property, or risk located within this state at the time of contracting.
(5) Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant.
. The exhibits can be summarized as follows:
(1) Exhibit 1:
a copy of business cards
(2) Exhibits 3, 5, 6, 7, 10, 18:
letters by John Frederick to other individuals or Defendants
(3) Exhibits 8, 9, 11:
letters from HAB to other individuals, including one or both of the Defendants
(4) Exhibits 12, 13, 14, 15, 16, 17:
letters from TRW employees to other individuals, including one or both of the Defendants
. Hydro-Aluminum concedes that Schmidt-Off-haus was its employee during all of the times that are relevant to this litigation. (Defendants' Brief at 10.)
. Q: And you understood Mr. DiGuiseppe was here and working as an agent of Hydro-Aluminum s.a. of Europe, correct?
A: That's correct.
A: He was the sales — vice-president of sales and my main sales contact at Hydro-Aluminum on the inside basis.
Q: In your affidavit you say Hydro-Aluminum s.a. of Europe?
A: Same joint, HAB, Hydro-Aluminum Bohn, they switched names in the process. It used to be Bohn Aluminum, then it was Hydro-Aluminum s.a., yeah, that’s correct, same guy, same company.
(MacDonald Dep. at 53-54, October 28, 1993.)