Ohserase Manufacturing LLC v. Aiger Group AG Switzerland

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
OHSERASE MANUFACTURING LLC,
Plaintiff,
vs. 	8:25-CV-1073
(MAD/PJE)
AIGER GROUP AG SWITZERLAND,
d/b/a AIGER ENGINEERING LTD.,
Defendant.
____________________________________________
APPEARANCES: 	OF COUNSEL:
RUPP PFALZGRAF LLC 	JAMES J. GRABER, ESQ.
1600 Liberty Building 	JACK E. GRANT, ESQ.
424 Main Street
Buffalo, New York 14202
Attorneys for Plaintiff
HACKER MURPHY LLP 	THOMAS J. HIGGS, ESQ.
28 Second Street 	BENJAMIN F. NEIDL, ESQ.
Troy, New York 12180
Attorneys for Defendant
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Ohserase Manufacturing LLC ("Plaintiff") commenced this action on August 11, 2025,
see Dkt. No. 1, and filed proof of service on September 17, 2025, see Dkt. No. 7. On September
30, 2025, Aiger Group AG Switzerland ("Defendant") filed a motion to dismiss for improper
service and a lack of personal jurisdiction over Aiger Engineering Ltd., which Defendant
contends is erroneously listed by Plaintiff as its "doing business as" name. See Dkt. No. 8.
Plaintiff opposed the motion on October 21, 2025, and simultaneously cross-moved for an
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extension of time to re-serve Defendant or permission to serve either: (1) Defendant's overseas
representatives via email; or (2) Defendant's United States-based counsel. See Dkt. No. 12.
Defendant filed a reply in further support of its motion, and in opposition to Plaintiff's cross-
motion, on October 28, 2025. See Dkt. No. 14.
Defendant's motion and Plaintiff's cross-motion are now before the Court. For the reasons
stated herein, Defendant's motion is granted, and Plaintiff's motion is denied.
II. BACKGROUND
Plaintiff, a cigarette manufacturer based in Akwesasne, New York, alleges that Defendant
breached an agreement to provide Plaintiff with two cigarette packing machines. See Dkt. No. 1
at ¶¶ 4, 7-16, 28; Dkt. No. 5. According to Plaintiff's complaint, Defendant is a "Swiss business
entity with its headquarters and principal place of business in Bulgaria[,]" which designs,
manufactures, and sells industrial packaging machinery. Dkt. No. 1 at ¶¶ 5-6. As outlined below,
Defendant disputes Plaintiff's characterization of Defendant's location and relationship to other
corporate entities.
A. 	The Parties' Agreement
Because the parties' motion papers concern service of process and personal jurisdiction,
the Court provides only a broad overview of the contract dispute underpinning this action. The
parties entered their agreement in or around January 2023, see Dkt. No. 1 at ¶¶ 7, 9; Dkt. No. 5,
and Defendant allegedly missed delivery deadlines by up to ten months, see Dkt. No. 1 at ¶ 17.
Plaintiff claims the delays forced it to take costly mitigation measures, including paying more
than $23,000 in overtime wages to its employees. See id. at ¶¶ 19, 21-22. After the machines
were delivered and started operating "in mid-to-late 2024," id. at ¶ 24, their component parts
started breaking, see id. at ¶ 26. Because of these "constant malfunctions," Defendant allegedly
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kept its installation team at Plaintiff's facility long term and "feebl[y]" attempted to repair the
machines. Id. at ¶¶ 31-34. Plaintiff claims it paid nearly $50,000 in hotel and vehicle rental costs
for Defendant's employees. See id. at ¶ 35. Around November 25, 2024, Defendant allegedly
recalled its repair team to Europe. See id. at ¶ 41. Plaintiff allegedly paid one of Defendant's
employees $18,000 to stay in New York through mid-December 2024. See id. at ¶ 44.
In January 2025, Plaintiff sent Defendant a letter explaining the problems with the
machines. See id. at ¶ 53. Defendant agreed to complete an "acceptance test" for the first
machine by March 15, 2025, and the second machine by April 30, 2025. Id. at ¶ 54. However,
Defendant allegedly missed those deadlines and misrepresented the test results to overstate the
machines' capabilities. See id. at ¶¶ 55-57. On July 9, 2025, Defendant's chief executive officer
sent Plaintiff an email purportedly attempting to renounce Defendant's contractual obligations.
See id. at ¶¶ 58-64. Thereafter, on August 5, 2025, Defendant allegedly "threw up its hands and
deserted the project altogether, leaving [P]laintiff nearly $3 million in the hole and with two
machines that are better suited as coat racks than packing machines." Id. at ¶ 74. The complaint
enumerates three causes of action: (1) breach of contract; (2) unjust enrichment; and (3)
fraudulent misrepresentation. See id. at ¶¶ 77-100.
B. 	Service of Process
Plaintiff filed an affidavit of service on September 17, 2025. See Dkt. No. 7. The
affidavit affirms service of the summons on an individual named Christopher Franklin at 608
Island Pointe Lane in Moneta, Virginia. See id. The affidavit identifies Franklin as an "officer of
Aiger" and specifies the Virginia address as a "[h]ome." Id.
In arguing that service was improper, Defendant states that Franklin has never worked for
Aiger Group AG Switzerland or Aiger Engineering Ltd. See Dkt. No. 8-10 at 7. Rather,
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according to Defendant, Franklin is a former employee of Aiger USA LLC, "a Pennsylvania
limited liability company that the Aiger family of companies formed in 2008." Id. Defendant
states that Franklin worked as a sales associate for Aiger USA until September 2021, four years
before the attempted service of process in this action, and Aiger USA shut down in December
2023. See id. With its papers, Defendant submits Franklin's separation report, see Dkt. No. 8-8
(indicating that Franklin's position was eliminated for budgetary reasons during the COVID-19
pandemic), and documents from the Pennsylvania Departments of State and Revenue showing
Aiger USA's dissolution, see Dkt. No. 8-9 at 3-4.
Citing two different LinkedIn profiles and a public records search, Plaintiff contends that
service was proper because Franklin "publicly held himself out as the head of 'Americas'
operations for [D]efendant's enterprise, bearing the title 'Director – Americas, Aiger Engineering
Ltd.[,]'" and was publicly listed as a "principal" of Aiger USA. Dkt. No. 12-3 at 4-5; see Dkt. No.
12-1 at ¶¶ 11-17. Plaintiff also states that it contacted Aiger USA "before it was known whether
[D]efendant was represented by counsel," and the company "represented that Chris Franklin was
still and [sic] employee of Aiger USA." Dkt. No. 12-1 at ¶ 16. Plaintiff submits a screenshot of
Defendant's website showing a list of Aiger offices in Bulgaria, Pennsylvania, Thailand, and
Switzerland, see id. at ¶ 11, but does not otherwise respond to Defendant's evidence that Aiger
USA is no longer in operation.
Defendant distinguishes the three Aiger companies as follows: (1) Aiger Group AG
Switzerland "is a holding company organized under the laws of Switzerland with a principal place
of business in Baarerstrasse, Switzerland[,]" and is the actual defendant in this case; (2) Aiger
Engineering Ltd. "is a Bulgarian limited company with a principal place of business in Plovdiv,
Bulgaria[,]" is not an alternative trade name for Aiger Group AG Switzerland, and is therefore
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inappropriately named in the case caption; and (3) Aiger USA, now defunct, was a separate but
affiliated corporate entity based in the United States. Dkt. No. 8-10 at 5, 7-8; see Dkt. No. 8-1 at
¶¶ 4-5, 9; Dkt. No. 8-5 at ¶¶ 5, 9-10, 13; Dkt. No. 8-9.
III. DISCUSSION
A. 	Legal Standards
1. 	Insufficient Service of Process
"Before a federal court may exercise personal jurisdiction over a defendant, the procedural
requirement of service of summons must be satisfied." Omni Cap. Int'l, Ltd. v. Rudolf Wolff &
Co., 484 U.S. 97, 104 (1987). When a defendant moves to dismiss for insufficient service of
process under Federal Rule of Civil Procedure 12(b)(5), "the plaintiff bears the burden of proving
the defendant was adequately served." Sun v. Cuomo, No. 1:19-CV-497, 2019 WL 5307359, *1
(N.D.N.Y. Oct. 21, 2019) (citing Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010)); see
Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005). "[T]he Court may look beyond
the pleadings, including to affidavits and supporting materials, to determine whether service was
proper." Safran Elecs. & Def. SAS v. Exail SAS, 764 F. Supp. 3d 133, 139 (S.D.N.Y. 2025)
(citation and internal quotation marks omitted). "Actual notice of the action does not cure or
waive a service defect." Sun, 2019 WL 5307359, at *1 (citing Sikhs for Just. v. Nath, 850 F.
Supp. 2d 435, 441 (S.D.N.Y. 2012)); see Sartor v. Toussaint, 70 Fed. Appx. 11, 13 (2d Cir. 2002)
(summary order) (citations omitted).
Rule 4(h) governs service of process on corporations and provides two options for service,
depending on whether service occurs inside or outside a United States judicial district. See FED.
R. CIV. P. 4(h). To serve a corporation within a United States judicial district, a plaintiff must
either: (1) "deliver[] a copy of the summons and of the complaint to an officer, a managing or
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general agent, or any other agent authorized by appointment or by law to receive service of
process[,]" id. at 4(h)(1)(B); or (2) serve the summons and complaint in the same manner as
service on an individual, as set out in Rule 4(e)(1), see id. at 4(h)(1)(A). Rule 4(e)(1) permits
service within a United States judicial district by "following state law for serving a summons in
an action brought in courts of general jurisdiction in the state where the district court is located or
where service is made[.]" Id. at 4(e)(1). To serve a corporation outside a United States judicial
district, the plaintiff must follow Rule 4(f). See id. at 4(h)(2). In conjunction with Rule 4(h)(2),
Rule 4(f) authorizes service on foreign corporations "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[,]" id. at 4(f)(1), sets
out additional requirements if there is no internationally agreed means of service, and permits
service "by other means not prohibited by international agreement, as the court orders[,]" id. at
4(f)(2)(A)-(B), (C)(ii), (3).
If the Court determines that service was defective, it "may, but is not required to, dismiss
the action. Alternatively, the court may grant leave to allow the plaintiff to cure the
insufficiency." Zhang v. Ichiban Grp., LLC, No. 1:17-CV-148, 2017 WL 5991748, *2 (N.D.N.Y.
Dec. 1, 2017) (citation and internal quotation marks omitted).
2. 	Personal Jurisdiction
"Where a party moves to dismiss an action for lack of personal jurisdiction pursuant to
Rule 12(b)(2), . . . the plaintiff bears the burden of showing that the court has jurisdiction over
the defendant." Burdick v. Oswego Cnty., No. 5:15-CV-353, 2015 WL 6554515, *2 (N.D.N.Y.
Oct. 29, 2015) (citing Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.
1996)). "Prior to discovery, a plaintiff may survive a Rule 12(b)(2) motion to dismiss by pleading
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in good faith legally sufficient allegations of jurisdiction." Id. (citing Metro. Life Ins. Co., 84 F.3d
at 566). To meet that burden, the "plaintiff must plead facts which, if true, are sufficient in
themselves to establish jurisdiction." Id. (citation and internal quotation marks omitted).
"Pleadings that assert only 'conclusory non-fact-specific jurisdictional allegations' or state a 'legal
conclusion couched as a factual allegation' do not meet this burden." Id. (citing Jazini v. Nissan
Motor Co., Ltd., 148 F.3d 181, 185 (2d Cir. 1998)).
B. 	Defendant's Motion to Dismiss for Insufficient Service of Process
Defendant argues that Plaintiff did not properly effectuate service under either prong of
Rule 4(h). See Dkt. No. 8-10 at 8. Regarding service within a United States judicial district,
Defendant contends that Franklin was not authorized to receive service on Defendant's behalf.
See id. at 8-13. Regarding service outside a United States judicial district, Defendant argues that
Plaintiff is obligated to follow the Hague Convention. See id. at 14. Plaintiff argues that its
service on Franklin was "at least substantially compliant with Rule 4" because Franklin "appeared
to have authority to act on [D]efendant's behalf." Dkt. No. 12-3 at 4-5. Plaintiff also argues that
because Defendant now knows about the lawsuit, requiring Plaintiff to adhere to the Hague
Convention for international service "would be an empty formality." Id. at 18.
1. 	Service Within a United States Judicial District
Because the attempted service occurred in Virginia, it is evident that Plaintiff attempted to
avail itself of Rule 4(h)(1). Defendant argues that service under Rule 4(h)(1) fails because
Franklin "is a former employee" of non-party Aiger USA, and even during his employment as a
sales associate, he "was not authorized or eligible to accept service of process" for any of the at-
issue Aiger companies. Dkt. No. 8-10 at 9-10. Plaintiff counterargues that service was proper
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because Franklin had apparent authority to accept service on Defendant's behalf. See Dkt. No.
12-3 at 3-6.
Rule 4(h)(1)(B) provides for service "by delivering a copy of the summons and of the
complaint to an officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process[.]" FED. R. CIV. P. 4(h)(1)(B). Likewise,
Rule 4(h)(1)(A), through Rule 4(e)(1), see id. at 4(h)(1)(A), permits service in accordance with
"state law for serving a summons in an action . . . in the state where the district court is located or
where service is made[,]" id. at 4(e)(1). Here, those states are New York and Virginia. Although
Defendant argues that Plaintiff failed to meet both states' applicable service requirements, see
Dkt. No. 8-10 at 10-13, Plaintiff makes no arguments concerning service under Virginia law, see
Dkt. No. 12-3 at 3-7 (discussing only the Federal Rules of Civil Procedure and New York's
service rules). Because Plaintiff bears the burden of showing that service was proper, the Court's
Rule 4(h)(1)(A) analysis only addresses New York law.
New York's Civil Practice Law and Rules permit service on a foreign corporation1 through
"an officer, director, managing or general agent, or cashier or assistant cashier or to any other
agent authorized by appointment or by law to receive service." N.Y. C.P.L.R. § 311(a)(1). Most
of this language mirrors Rule 4(h)(1)(B), and courts interpret the provisions as "substantively
identical." Lin v. Quality Woods, Inc., No. 17-CV-3043, 2019 WL 1450746, *4 (E.D.N.Y. Jan.
1 C.P.L.R. § 311(a)(1) also permits service on a business corporation through New York's
Business Corporation Law. See N.Y. C.P.L.R. § 311(a)(1); N.Y. BUS . CORP . LAW §§ 306
(discussing service of process on foreign corporations authorized to do business in New York),
307 (discussing service of process on foreign corporations not authorized to do business in New
York). Defendant indicates that Aiger AG Switzerland and Aiger Engineering Ltd. are not
"registered (authorized) with the New York Secretary of State to do business in New York." Dkt.
No. 8-10 at 11 n.3. Plaintiff does not contest that point. Because Plaintiff does not claim to have
served the Secretary of State, the designated receiver of process in § 307, service under that
provision is not established.
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28, 2019) (citing Cooney v. Barry Sch. of L., 994 F. Supp. 2d 268, 270 (E.D.N.Y. 2014); Avanti
Enters., Inc. v. A&T Produce, Inc., No. 09-CV-1185, 2010 WL 3924771, *1 (E.D.N.Y. July 21,
2010), R. & R. adopted, 2010 WL 3909243 (E.D.N.Y. Sept. 30, 2010)). The state rule adds
"cashier" and "assistant cashier" to the list of permissible service recipients, which New York
courts define as the corporation's "'financial agent . . . who has charge of its funds, and has the
right to take charge of such funds to the exclusion of every other person.'" Oustecky v.
Farmingdale Lanes, Inc., 246 N.Y.S.2d 859, 860-61 (Sup. Ct. Special Term 1964) (quoting
Eisenhofer v. New Yorker Zeitung Publishing & Printing Co., 91 A.D. 94, 95 (1st Dep't 1904));
see Weiss v. Glatt Pack Kosher, Inc., 138 A.D.2d 591, 591-92 (2d Dep't 1988) (rejecting the
argument that a person stationed at a cash register is a "cashier" who can receive service).
Importantly, a person's status as a corporation's employee does not automatically mean the
person can receive service on the corporation's behalf. See Garcia v. Rebecca Minkoff LLC, No.
22-CV-1912, 2025 WL 3897903, *6 (S.D.N.Y. Nov. 24, 2025) (citing Lin v. Yuri Sushi, Inc., No.
18-CV-528, 2025 WL 774911, *2 (S.D.N.Y. Mar. 11, 2025); Quality Woods, 2019 WL 1450746,
at *4). Rather, service must be made upon an individual "'who operates at [the corporate
defendant's] highest levels, or at least has overall authority to make high-level decisions on the
part of the enterprise.'" Quality Woods, 2019 WL 1450746, at *5 (collecting cases). Permitting
service upon any "manager," as the term is colloquially used, would expand the rules to permit
service upon "any person of suitable age and discretion employed by the defendant corporation."
Id. (citation and internal quotation marks omitted).
Plaintiff's argument relies on the proposition that "New York courts construe the term
'managing or general agent' broadly to include representatives who have apparent authority to
accept service even if their exact job title is not listed in the statute[,]" and based on Franklin's
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online self-representations, service upon him was "at least substantially compliant with Rule 4."
Dkt. No. 12-3 at 3-4. Phrased differently, Plaintiff argues not that Franklin fits within any class of
corporate actors mentioned in the governing rules, but rather that he appeared to do so.
Defendant contends that legal authorities do not support Plaintiff's position. See Dkt. No. 14 at 6.
The Court agrees with Defendant.
Plaintiff cites two cases for the proposition that "service on apparent corporate agents"
may be effective. Dkt. No. 13-2 at 5 (citing Melkaz Int'l Inc. v. Flavor Innovation Inc., 167
F.R.D. 634 (E.D.N.Y. 1996); Leo v. Gen. Elec. Co., 111 F.R.D. 407 (E.D.N.Y. 1986)). In both
cases, the Eastern District of New York applied § 311 and found proper service where the
plaintiffs served the defendant corporations' employees at the companies' facilities. See Melkaz,
167 F.R.D. at 642; Leo, 111 F.R.D. at 414. However, Plaintiff fails to elaborate on the underlying
"redelivery" doctrine, which Defendant describes in its reply. See Dkt. No. 14 at 6-9.
Both Melkaz and Leo cite a New York Court of Appeals case recognizing that service of
process on an employee outside the governing rules—who then redelivers the documents to an
appropriate corporate actor—may be proper in some circumstances. See Fashion Page, Ltd. v.
Zurich Ins. Co., 50 N.Y.2d 265, 272-73 (1980). As highlighted in Melkaz, "the New York Court
of Appeals has found service of process to be valid where 'the process server has gone to [the
corporation's] offices, made proper inquiry of the defendant's own employees, and delivered the
summons according to their own directions.'" Melkaz, 167 F.R.D. at 641 (quoting Fashion Page,
50 N.Y.2d at 273) (emphasis added). On the other hand, the Fashion Page court explained that
"[d]elivering the summons to a building receptionist, not employed by the defendant, without any
inquiry as to whether she is a company employee, would not be sufficient. Such service cannot
be upheld even though the receptionist may later deliver the summons to the proper party."
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Fashion Page, 50 N.Y.2d at 273; see also Breene v. Guardsmark, Inc., 680 F. Supp. 88, 90
(S.D.N.Y. 1987) (recognizing Fashion Page's liberal construction of proper service while
acknowledging the requirement that the process server go to the defendant corporation's offices
and inquire about the appropriate recipient of service).
Plaintiff never alleges that Franklin presently works or previously worked for Aiger Group
AG Switzerland. Although Plaintiff's counsel's declaration includes a screenshot of two separate
LinkedIn profiles purportedly identifying Franklin as "Sales Director – Americas" for Aiger USA,
with a vague description of "[m]anaging USA office and [S]outh American office in Brazil[,]"
and "Director Americas" for Aiger Engineering Ltd., Dkt. No. 12-1 at ¶ 15, Plaintiff alleges no
facts suggesting those roles authorize Franklin to receive service for those entities or any other
Aiger company. The filed affidavit of service characterizes Franklin as an "officer of Aiger[,]"
but does not elaborate on how the process server reached that conclusion. Dkt. No. 7.
Furthermore, neither the affidavit nor Plaintiff's motion papers give any indication that the
process server engaged in the kind of inquiry described in Fashion Page that would allow service
based on apparent authority and redelivery. It is reasonably clear from the affidavit, however, that
the process server did not attempt to serve Franklin at Defendant's headquarters or any facility
operated by Defendant. Rather, the affidavit characterizes the Virginia address as a home, see id.,
and Plaintiff never refutes Defendant's observation that the address is "a single-family
residence[,]" Dkt. No. 8-1 at ¶ 8.
Accordingly, the Court rejects Plaintiff's "substantial compliance" argument. Plaintiff has
not demonstrated that its attempted service upon Franklin complied with Rule 4(h)(1). At best,
Plaintiff alleges facts showing service upon an employee of Defendant's non-party sister
corporation at his private home.
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2. 	Service Outside a United States Judicial District
Rule 4(h)(2) permits service outside a United States judicial district through most of the
methods prescribed in Rule 4(f). See FED. R. CIV. P. 4(h)(2). One such method is through "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[.]" Id. at 4(f)(1). Plaintiff has not alleged any attempt to serve Defendant outside a
United States judicial district, but acknowledges in its cross-motion that "Defendant has a
presence in Bulgaria and Switzerland, and ordinarily [P]laintiff would have to resort to Hague
Convention service through Switzerland and Bulgaria's Central Authorities." Dkt. No. 12-3 at 17.
In other words, Plaintiff agrees with Defendant that the Hague Convention applies to international
service in this case. See Dkt. No. 8-4 (listing members of the Hague Convention, including
Bulgaria and Switzerland). Plaintiff attempts to wave away the use of Hague Convention service
by characterizing it as "time-consuming and cumbersome – involving translations into German,
French, and/or Bulgarian, transmission of documents abroad, and an uncertain waiting period for
confirmation of service." Dkt. No. 12-3 at 17. In short, Plaintiff never claims to have attempted
international service, and nothing in the record establishes proper service under Rule 4(h)(2).
3. 	Defendant's Motion to Dismiss as a Waiver of Service
Plaintiff argues that its defective service on Franklin still "achieved the fundamental
purpose of Rule 4: providing the defendant with notice of the claims." Dkt. No. 12-3 at 6.
According to Plaintiff, "Defendant's own actions indicate that it learned of this lawsuit
immediately, if not very soon after the service was completed upon Mr. Franklin – so promptly, in
fact, that it was able to prepare and file a detailed motion to dismiss by September 30, 2025." Id.
Plaintiff contends that Defendant's quick engagement of counsel "plainly shows it is not suffering
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from lack of notice, but rather attempting to gain a litigation advantage." Id. Essentially, Plaintiff
urges this Court to treat Defendant's motion to dismiss as a waiver of service. Defendant states
that its motion is not a waiver of service and takes the position that "indulg[ing] this argument
would be nothing short of judicial repeal of Rule 12(b)(5)—every motion under it would be self-
defeating." Dkt. No. 14 at 11. Once again, the Court agrees with Defendant.
Plaintiff cites cases from the District of Vermont and Second Circuit for the proposition
that "where a defendant actually receives the summons and complaint, defects in the method of
service may be excused, as long as the service was reasonably calculated to reach the defendant."
Dkt. No. 12-3 at 6 (citing Leger v. Dessureault, 733 F. Supp. 786 (D. Vt. 1990); Morse v. Elmira
Country Club, 752 F.2d 35 (2d Cir. 1984)). However, these cases rely on an interpretation of the
former Rule 4(c)(2)(C)(ii), which dealt with service by mail and no longer appears in Rule 4. See
FED. R. CIV. P. 4; Morse, 752 F.2d at 37 (characterizing the former Rule 4(c)(2)(C)(ii) as
containing "the method of serving process by mail"). In Morse, the Second Circuit determined
that a defendant's failure to acknowledge mailed service of process would not automatically void
service under the former Rule 4(c)(2)(C)(ii). See Morse, 752 F.2d at 39-40.
As Defendant points out, we are not dealing with service by mail in this case. See Dkt.
No. 14 at 11. Defendant also argues that Plaintiff's cited cases are obsolete. See id. at 10-11. The
Court agrees with Defendant on both points. Another court in this circuit has recognized that
Morse "was later superseded by 1993 amendments to Rule 4[,]" and by extension, the Leger
court's reliance on Morse is unpersuasive. Kogan v. Facebook, Inc., 334 F.R.D. 393, 401 n.7
(S.D.N.Y. 2020). The Court therefore rejects Plaintiff's argument that an approach similar to the
one in Morse and Leger is appropriate here.
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From a practical standpoint, adopting Plaintiff's argument that a motion to dismiss
functions as a waiver of service would undermine Rule 12(b)(5). That Rule expressly allows
parties to move for dismissal on the ground of insufficient service of process. See FED. R. CIV. P.
12(b)(5). Although a Rule 12(b)(5) defense is waived if not asserted in a party's first responsive
pleading or pre-answer motion, see Cusamano v. Alexander, 691 F. Supp. 2d 312, 315 n.1
(N.D.N.Y. 2009) (citing FED. R. CIV. P. 12(h)(1)) (other citations omitted), filing a Rule 12(b)(5)
motion to dismiss asserts the defense and does not equate to a waiver of service, see Nath, 850 F.
Supp. 2d at 441 (rejecting the proposition that a defendant's actual notice of an action excuses
defective service); Sung v. DeJoy, No. 22-CV-7682, 2024 WL 4107212, *12 n.18 (E.D.N.Y. Sept.
5, 2024) (noting that "'it is a well-settled principle of law in this Circuit that merely appearing
before the court does not waive the defense of insufficient service of process'") (quoting Telkamp
v. Vitas Healthcare Corp. Atl., No. 3:15-CV-726, 2016 WL 777906, *6 (D. Conn. Feb. 29,
2016)). To hold otherwise would render the Rule inoperable. Here, Defendant plainly asserts a
Rule 12(b)(5) defense in its pre-answer motion to dismiss, see Dkt. No. 8-10 at 1, 8-14, which
shows the defense was not waived.
Accordingly, the Court finds that Plaintiff did not properly serve Defendant under any
subsection of Rule 4(h).
C. 	Personal Jurisdiction Over Aiger Engineering Ltd.
Proper service is a prerequisite to a court's exercise of personal jurisdiction over a
defendant. See Omni Cap. Int'l, 484 U.S. at 104. Because the Court has determined that no
proper service occurred, it declines to opine on whether Plaintiff sufficiently alleged personal
jurisdiction over Aiger Engineering Ltd.
D. 	Plaintiff's Cross-Motion for Extension of Time or Alternative Service
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Plaintiff cross-moves for leave under Rules 4(m) and 4(f)(3) for an extension of time to re-
serve Defendant or to use an alternative service method. See Dkt. No. 12-3 at 7-8.
Rule 4(m) requires courts to "extend the time for service for an appropriate period" if the
plaintiff shows good cause for its failure to serve. FED. R. CIV. P. 4(m). It does not apply to
Rules 4(h)(2) or 4(f). See id. This Court has previously recognized that "'[g]ood cause to excuse
deficient service generally requires proof of exceptional circumstances that were beyond [the
plaintiff's] control.'" Labombard v. Winterbottom, No. 8:14-CV-71, 2014 WL 6674629, *3
(N.D.N.Y. Nov. 25, 2014) (quoting Norwood v. Salvatore, No. 3:12-CV-1025, 2013 WL
1499599, *5 (N.D.N.Y. Apr. 10, 2013)). "[I]nadvertence, neglect, mistake[,] or misplaced
reliance" by the plaintiff's attorney "does not constitute good cause." Stuart v. Paulding, No.
1:12-CV-25, 2013 WL 1336602, *3 (N.D.N.Y. Mar. 28, 2013) (citation and internal quotation
marks omitted). Courts may, but are not required to, grant discretionary extensions in the absence
of good cause by weighing "'justifiable excuses offered by the plaintiff, the length of the delay,
and any prejudice to either party.'" Labombard, 2014 WL 6674629, at *3 (quoting Stuart, 2013
WL 1336602, at *4).
Separately, Rule 4(f)(3), by reference in Rule 4(h)(2), see FED. R. CIV. P. 4(h)(2), permits
service on a foreign corporation by "means not prohibited by international agreement, as the court
orders[,]" id. at 4(f)(3). Plaintiff requests permission to serve defense counsel, who are based in
the United States, or to serve Defendant's overseas representatives via email. See Dkt. No. 12-3 at
12-17. Defendant counterargues that alternative service is improper, and if Plaintiff serves
process internationally, it must follow the Hague Convention. See Dkt. No. 14 at 11-13. Again,
both parties acknowledge that Bulgaria and Switzerland are Hague Convention signatories. See
Dkt. No. 8-4; Dkt. No. 12-3 at 17.
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As summarized by the Supreme Court, the Convention applies "in civil or commercial
matters[] where there is occasion to transmit a judicial or extrajudicial document for service
abroad." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) (citation and
internal quotation marks omitted). Although the Supreme Court has recognized that "compliance
with the Convention is mandatory in all cases to which it applies," id. at 705, "[t]he Convention
does not specify the circumstances in which there is 'occasion to transmit' a complaint 'for service
abroad[,]'" id. at 700. Other courts in this circuit have recognized that "[c]ompliance with the
Hague Service Convention is mandatory when serving a defendant who resides in a foreign
country that is a signatory to the convention." SeaCube Containers LLC v. Compass Containers
& Shipping Servs. Ltda., 427 F. Supp. 3d 497, 500 (S.D.N.Y. 2019) (quoting RSM Prod. Corp. v.
Fridman, No. 06-CV-11512, 2007 WL 1515086, *1 (S.D.N.Y. May 24, 2007)) (internal quotation
marks omitted); see In re Advance Watch Co., Ltd., 587 B.R. 598, 603 (Bankr. S.D.N.Y. 2018)
(citations omitted); Burda Media, 417 F.3d at 299-300.
Thus, if Plaintiff serves Defendant's representatives in Bulgaria or Switzerland, the Hague
Convention is the default rule.2 Notwithstanding, Plaintiff seeks permission to serve Defendant's
representatives abroad via email. "'The decision whether to allow alternative methods of serving
process under Rule 4(f)(3) is committed to the sound discretion of the district court.'" Schluter
Sys., L.P. v. Sanven Corp., No. 8:22-CV-155, 2023 WL 130888, *2 (N.D.N.Y. Jan. 6, 2023)
2 The Hague Convention does not apply when the recipient's foreign address is unknown. See
Smart Study Co., Ltd. v. Shenzhenshixindajixieyouxiangongsi, 164 F.4th 164, 168 (2d Cir. 2025)
(citation and internal quotation marks omitted). Although Plaintiff attests to researching possible
means of service in the United States, see Dkt. No. 12-1 at ¶¶ 11-17, Plaintiff does not allege any
endeavors to discover Defendant's foreign address or otherwise establish that the address was
unknown. A street address in Bulgaria appears on email messages attached to Plaintiff's motion
papers, although it is not clear whether that address is a proper service address. See Dkt. No. 12-
2. Regardless, Plaintiff concedes that the Hague Convention applies to foreign service in this
case. See Dkt. No. 12-3 at 17.
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(quoting Shanghai Zhenglang Tech. Co., Ltd. v. Mengku Tech. Co., Ltd., No. 20-CV-5209, 2020
WL 13280555, *1 (E.D.N.Y. Nov. 18, 2020)).
Addressing a similar issue, the Second Circuit recently found that email service on
defendants in China was improper because China had objected to the modes of service set out in
Article 10 of the Convention. See Smart Study Co., Ltd. v. Shenzhenshixindajixieyouxiangongsi,
164 F.4th 164, 170-72 (2d Cir. 2025) (citation and internal quotation marks omitted). As the
Second Circuit summarized, "Article 10(a) stipulates that so long as the 'State of destination does
not object, the present Convention shall not interfere with . . . the freedom to send judicial
documents, by postal channels, directly to persons abroad.'" Id. at 170 (emphasis removed). The
Second Circuit interpreted "postal channels" to include email and reasoned that an objection to
Article 10 constitutes an objection to email service. See id. at 170-72. The Court's research
indicates that both Bulgaria and Switzerland have objected to the modes of service in Article 10.3
Accordingly, the Court declines to permit alternative service via email on Defendant's
representatives in Switzerland and/or Bulgaria.
Alternatively, Plaintiff seeks permission to serve Defendant's United States-based counsel
under Rule 4(f)(3). See Dkt. No. 12-3 at 12-13. In support, Plaintiff cites an Eastern District case
where service on a foreign corporate defendant's United States-based counsel was permitted. See
3 See Declaration/Reservation/Notification, HAGUE CONF . ON PRIVATE I NT 'L L.,
https://www.hcch.net/en/instruments/conventions/status-
table/notifications/?csid=28&disp=resdn#:~:text=Yes%2C%20the%20Republic%20of%20Bulgar
ia%20objects%20to,or%20accompanied%20by%20a%20translation%20into%20Bulgarian. (last
visited May 1, 2026) ("The Republic of Bulgaria objects to the use of the channels of transmission
for service mentioned in Article 10 of the Convention"); Declaration/Reservation/Notification,
HAGUE CONF . ON PRIVATE I NT 'L L., https://www.hcch.net/en/instruments/conventions/status-
table/notifications/?csid=424&disp=resdn (last visited May 1, 2026) ("In accordance with Article
21, second paragraph (a), Switzerland declares that it is opposed to the use in its territory of the
methods of transmission provided for in Articles 8 and 10").
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id. at 12 (citing Long v. MTN Grp. Ltd., No. 23-CV-5705, 2024 WL 4664619 (E.D.N.Y. Sept. 30,
2024)). The Eastern District used a two-step discretion analysis, which Defendant cites in its
reply papers:
[C]ourts in this Circuit have often found it appropriate for certain
threshold conditions to be satisfied prior to the issue of an
alternative-service order, so as to prevent parties from whimsically
seeking alternate means of service and thereby increasing the
workload of the courts. . . . These threshold conditions require (1) a
showing that the plaintiff has reasonably attempted to effectuate
service on the defendant[s], and (2) a showing that the
circumstances are such that the district court's intervention is
necessary.
Long, 2024 WL 4664619, at *4 (internal citations and quotation marks omitted); see Dkt. No. 14
at 12. Through the two-step analysis, the Long court determined that judicial intervention was
necessary. See Long, 2024 WL 4664619, at *7. The court allowed alternative service because the
Chinese Authority had recently refused to cooperate with the plaintiff's attorneys' attempts at
Hague Convention service on the same defendants in other matters. See id. at *6-7. The
Southern District of New York has also recently relied upon this approach. See, e.g., I.S.T. N.
Am., LLC v. Trelleborg Pipe Seals Milford, Inc., No. 25-CV-8349, 2026 WL 322913, *4, *6
(S.D.N.Y. Feb. 5, 2026) (acknowledging the validity of and need for this approach, even though
Rule 4(f)(3) does not expressly require it) (citations omitted); Agrana Fruit U.S., Inc. v.
Ingredientrade Inc., No. 23-CV-10147, 2025 WL 3039929, *1-3 (S.D.N.Y. Oct. 31, 2025) (using
the two-step approach and determining that alternative service was appropriate under the
circumstances). The question of whether to permit alternative service is a highly fact-specific
one. See In re GLG Life Tech. Corp. Sec. Litig., 287 F.R.D. 262, 266-67 (S.D.N.Y. 2012)
(allowing alternative service on United States-based counsel where the request was precipitated
by the defendant's company withholding his service address).
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Although Plaintiff argues that service on defense counsel "will clearly satisfy due process
because it will undeniably notify [D]efendant of the suit[,]" Dkt. No. 12-3 at 13, Plaintiff fails to
make any compelling argument for the necessity of judicial intervention. Plaintiff contends that
alternative service would be "especially sensible" in this case because using the Hague
Convention "could easily take many months" and "would be an empty formality" after the instant
motion practice. Id. at 17-18. Plaintiff even argues that requiring it "to start over with foreign
service would only serve to reward [D]efendant's obstruction and postpone the inevitable." Id. at
18. This argument is unpersuasive because Defendant was within its rights to file a Rule 12(b)(5)
motion after Plaintiff failed to effectuate proper service. Plaintiff repeatedly cites the risk of
further delay and inconvenience as a reason to allow alternative service, but neglects to
acknowledge that its defective service is what caused the delay up to this point. Allowing
Plaintiff to bypass the multiple service options available under the Federal Rules of Civil
Procedure—for no reason other than its displeasure with the Hague Convention and failure to
identify a proper recipient of service in the United States—would inappropriately undermine Rule
12(b)(5) in this instance. Accordingly, the Court denies Plaintiff's request for leave to serve
defense counsel. For the same reasons, the Court finds Plaintiff has not shown good cause for an
extension of time to serve domestically under Rule 4(m), and declines to order a discretionary
extension.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the reasons set forth above, the Court hereby
ORDERS that Defendant's motion to dismiss (Dkt. No. 8) is GRANTED; and the Court
further
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ORDERS that Plaintiff's cross-motion for extension of time or alternative service (Dkt.
No. 12) is DENIED; and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED without prejudice for
improper service; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 5, 2026
Albany, New York
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