THIS CAUSE came on to be heard upon the defendant's Motion to Quash Service of Process and to Dismiss for Lack of Personal Jurisdiction or Alternative Motion to Stay Proceedings and Compel Arbitration (Doc. 4), the plaintiff's response (Doc. 7), and the defendant's reply (Doc. 13). Because the plaintiff properly served process upon the defendant, and the defendant had sufficient contacts with Florida to satisfy Florida's long-arm statute and constitutional due process requirements, the defendant's request to quash service of process and to dismiss for lack of personal jurisdiction will be denied. However, based on an arbitration provision in the parties' contract which makes arbitration mandatory under these circumstances, the alternative request to stay these proceedings and compel arbitration will be granted.
The plaintiff, Conax Florida Corporation, is headquartered in St. Petersburg, Florida. It specializes in the design and manufacture of pyrotechnic valves ("pyrovalves") that are used in satellites.*fn1 Defendant Astrium Limited is an English company with its principal place of business in the United Kingdom. It builds and maintains satellites for civil and military communications.
In 2000, the defendant contacted the plaintiff regarding the purchase of pyrovalves for its Eurostar 3000 commercial telecommunication satellites (Guenthardt Aff., Doc. 7-2, ¶8). The parties had previously developed a relationship when the defendant purchased from the plaintiff pyrovalves for its aerospace industry satellites (id. at ¶¶ 6, 7).
On July 24, 2000, the defendant gave the plaintiff in Florida an Authorization to Proceed and work order to manufacture pyrovalves for its Eurostar 3000 satellites (id. at ¶9; Doc. 7-5, Ex. 2). In March 2001, the defendant sent a team of employees to the plaintiff's facility in Florida in order to advance from the work authorization to the final contract (Guenthardt Aff., ¶10). The parties reached in Florida an oral agreement, which was subsequently placed in writing and signed by the defendant in England (id. at ¶¶ 11, 12).*fn2 The parties' Subcontract for Pyrotechnic Valves ("Subcontract") (Doc. 4-2) was then executed by the plaintiff in Florida (Guenthardt Aff., ¶12).
The defendant agreed to purchase from the plaintiff 406 pyrovalves, which were to be manufactured in four batches between April 2001 and June 2005 (Kovacik Aff., Doc. 7-7, Ex. B, ¶11). The Subcontract afforded the defendant full access to the plaintiff's facilities in order to observe, inspect, examine, and evaluate the plaintiff's work (Doc. 4-2, Art. 14, §14.1(a)).*fn3 The Subcontract further specified that the defendant had "the right to participate in or execute surveys, audits, reviews, source inspections, test observations, mandatory inspections and any other activity in pursuance of the terms of this Subcontract or have itinerant personnel" at the plaintiff's facilities (id. at §14.7). It also provided the defendant's representatives with office space and facilities when they were in Florida (Doc. 4-5, Art. 11, §11.12; see also Guenthardt Aff., ¶13).
Accordingly, approximately every other month throughout the term of the Subcontract the defendant's representatives traveled to the plaintiff's facility in St. Petersburg, Florida, to oversee the manufacturing and testing of the pyrovalves (Kovacik Aff., ¶¶ 12-14; Guenthardt Aff.,¶13). Additionally, the defendant brought its customers to Florida to tour the plaintiff's facility (Kovacik Aff., ¶12).
By June 2005, three of the four batches of pyrovalves had been manufactured and successfully tested. However, on June 28, and June 29, 2005, during the testing of the fourth batch of pyrovalves, both parties observed cracking in the valves (Guenthardt Aff., ¶15; Kovacik Aff., ¶16). Additionally, further examination of earlier batches of pyrovalves also showed cracking (Kovacik Aff., ¶16). The defendant's representatives subsequently visited the plaintiff's facility several times to investigate with the plaintiff the cause of the cracking (Guenthardt Aff., ¶¶ 15, 17; Kovacik Aff., ¶¶ 17-21).
Thereafter, a dispute arose regarding the scope of the plaintiff's liability under the contract for the nonconforming pyrovalves (see Guenthardt Aff., ¶22). Thus, in October 2005, the defendant claimed damages of approximately 24.5 million euros (which is in excess of thirty million United States dollars) (id. at ¶19). The plaintiff argues that this demand is excessive and is unrelated to the measure of damages contemplated in the Subcontract.
With regard to disputes, the Subcontract provides (Doc. 4-3, Art. 20, §20.2):
In the event of any dispute arising out of the terms of this Subcontract, the Parties shall undertake to make every reasonable effort to reach an amicable settlement. Failing such settlement, a controversy or claim arising out of or relating to this Subcontract may be finally settled by arbitration in accordance with the rules then in effect of the International Chamber of Commerce.
After the parties investigated liability, they communicated on settlement issues, without success. The parties subsequently agreed to mediate this dispute on December 15, 2006, in Florida (Giobbe Dec., Doc. 4-8, ¶5).
On December 12, 2006, Francesco P. Giobbe, defendant's counsel, traveled from France to Tampa to attend the mediation conference (id. at ¶7). The parties attended the mediation, but it ended in an impasse.
At the conclusion of the mediation, the mediator advised defense counsel to remain in the conference room (id. at ¶12). Thereafter, plaintiff's counsel entered the room with a process server and gave Giobbe a copy of the summons and complaint filed in this case (id. at ¶13).*fn4 Unbeknownst to the defendant, the plaintiff had filed this lawsuit in Pinellas County Circuit Court the previous day, December 14, 2006 (Doc. 4-6).
The plaintiff's complaint concedes that its pyrovalves failed, but it disputes the scope of its liability (Doc. 2, p. 4). The plaintiff seeks a declaratory judgment that its liability for the failed pyrovalves does not extend beyond their repair, replacement, or a refund to the defendant of the amount received by the plaintiff for the nonconforming valves (id. at p. 3).
After removing this lawsuit from state court (Doc. 1), the defendant filed its Motion to Quash Service of Process and to Dismiss for Lack of Personal Jurisdiction, or Alternative Motion to Stay Proceedings and Compel Arbitration (Doc. 4). The plaintiff submitted an opposition to this motion (Doc. 7). The defendant was permitted to file a reply (Doc. 13). Oral argument on the motion was subsequently conducted (Doc. 26).
The defendant argues that the case should be dismissed pursuant to Rule 12(b)(5), Fed.R.Civ.P., for insufficient service of process (Doc. 4, pp. 6-10). The plaintiff contends that it properly effected personal service of process upon the defendant pursuant to §48.031, Fla. Stat., and substitute service under §§ 48.161 and 48.181, Fla. Stat. (Doc. 7, pp. 5-11).
A. Under §48.031(1)(a), Fla. Stat., a party may effectuate service of process by "delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper...." The plaintiff contends that it complied with this provision when it served Giobbe, the defendant's corporate representative, in Tampa on December 15, 2006, following the failed mediation (Doc. 7, pp. 5-8).
The defendant argues that the plaintiff's service of process upon Giobbe is insufficient because the plaintiff accomplished service by luring him into Florida under the guise of settlement negotiations, which is a tactic prohibited by Florida law (Doc. 4, p. 6). Thus, in Citrexsa, S.A. v. Landsman, 528 So.2d 517 (Fla. App. 1988), service of process was quashed after the defendants, who traveled from Mexico to Florida to attend a settlement conference, were served with process prior to the mediation. The court found that the plaintiffs' conduct demonstrated that they "never intended to participate in good faith settlement negotiations, and that their agreement to participate in the settlement conference was merely an artifice to serve" the defendants. Id. at 518; see also Mallin v. Sunshine Kitchens, Inc., 314 So.2d 203 (Fla. App. 1975), cert. denied, 330 So.2d 22 (Fla. 1976).
Emphasizing the plaintiff's filing of the lawsuit the day prior to the mediation, the defendant claims that service of process in this case should be quashed because, "like the plaintiffs in Citrexsa, S.A. and Mallin, [the plaintiff] conned [the defendant] into traveling to Florida under the pretense of settlement," when its true intention was to serve the complaint (Doc. 4, p. 7). The plaintiff denies the defendant's allegation, contending, among other things, that its good faith participation in the mediation is evidenced by the attendance of its three most senior officers and the several hours they spent attempting to resolve the disagreement (Guenthardt Aff., ¶24).*fn5
In sum, there is a substantial dispute as to whether the plaintiff's actions in effecting personal service of process constitute bad faith. Its resolution would require an evidentiary hearing involving the disturbing circumstance of testimony from the lawyers involved in the mediation process.*fn6 However, this issue need not be resolved and, therefore, no evidentiary hearing is necessary, because, as discussed below, the plaintiff properly effected substitute service upon the defendant pursuant to §§ 48.161 and 48.181, Fla. Stat.
B. The plaintiff contends that it effected service upon the defendant in accordance with §§ 48.161 and 48.181, Fla. Stat. (Doc. 7, p. 9). In this regard, it explains (id. at p. 10, n.6):
Three copies of process ... were mailed certified mail, return receipt requested, as required, to the Secretary of State. A notice of service and a copy of the process were sent both to a company representative at [the defendant's] registered office in the United Kingdom and to its U.S. Attorney by certified mail, return receipt requested.
The defendant does not dispute that it received a copy of the summons and complaint through the mail (see Doc. 13, pp. 4-5). Rather, it argues that service of process by mail is not authorized by The Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters ("The Hague Convention"), which governs international service of judicial documents. 20 U.S.T. 361, T.I.A.S. No. 6638 (reprinted in 28 U.S.C.A., Fed.R.Civ.P. 4 (2007 Supp., note at p. 129)).
Article 10(a) of the Hague Convention specifies that the Convention shall not interfere with "the freedom to send judicial documents by postal channels directly to persons abroad" if the state of destination does not object. Since the United Kingdom has not objected to Article 10(a), see U.S. Dept. of State, Judicial Assistance in the United Kingdom, http://travel.state.gov./law/info/judicial, the plaintiff contends that service of process by mail pursuant to §§ 48.161 and 48.181, Fla. Stat., is not inconsistent with the Hague Convention's requirements (Doc. 7, p. 11). However, the defendant argues that the plaintiff's reliance on Article 10(a) is misplaced because Article 10(a) applies only to documents sent after service of process is effected (Doc. 13, pp. 4-5).
The crux of this issue is whether "freedom to send judicial documents" includes service of process. This is a matter on which federal courts disagree. One line of cases holds that the phrase "send judicial documents" does not include "service of process," but rather encompasses documents sent only after service of process is effected. See Nuovo Pignone, SpA v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir. 2002); Bankston v. Toyota Motor Corp., 889 F.2d 172, 174 (8th Cir. 1989). These courts hold that, if Article 10(a) were intended to permit an ...