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CAUSE NO. 2018-36443
ROBERT PETERSON IN THE DISTRICT COURT OF
HARRIS COUNTY, TEXAS
INTERPUMP GROUP, SPA,
GENERAL PUMP COMPANY, LLC,
OILNEX, LLC, NEXOIL, LLC, and
DCS CONSULTING, INC. 157TH JUDICIAL DISTRICT
DEFENDANT INTERPUMP GROUP S.p.A.’S
MOTION TO QUASH SUBJECT TO ITS SPECIAL APPEARANCE
TO THE HONORABLE COURT:
COMES NOW, Defendant INTERPUMP GROUP S.p.A. (“Interpump”) and subject
to its Special Appearance, moves to quash Plaintiff’s attempt to serve Interpump by
serving the Texas Secretary State. As a foreign Defendant, Interpump must be served
through the Hague Convention, which Plaintiff did not do. In support of this Motion,
Interpump would show the Court as follows:
INTRODUCTION
This is a personal injury lawsuit. Plaintiff, Robert Peterson, sued various entities,
including Interpump, after he was injured while servicing a pressure washer. He asserts
product liability claims including marketing defect, design defect, manufacturing defect,
The filingof thismotion does not waive Interpump’s Special Appearance. See T . P. 120a
(providing that other pleas, pleadings, and motions, if made subject to the special appearance, may be
filed without entering a general appearance); Knight Corp. Knight, 367 S.W.3d 715, 724 (Tex. App.
Houston [14th Dist.] 2012, no pet.) (“Courts generally do not find waiver of a special appearance when a
party neither acknowledges the trialcourt's jurisdictionnor takes actions inconsistent with challenging
personal jurisdiction.”); Koch Graphics, Inc. Avantech, Inc., 803 S.W.2d 432, 433 (Tex. App.Dallas
1991, no writ) (motion to quash service that was filed subject to special appearance did not waive same).
and failure to warn against several defending entities, including Interpump. In that regard,
Plaintiff alleges (without proof accompanying his petition) that one or more of various
entities manufactured, designed, distributed, installed, serviced and/or sold the pressure
washer that he was using at the time of the incident.
Interpump is a foreign corporation with its principal place of business in Italy.
Interpump is not a resident of the State of Texas. It does not maintain an office in Texas,
it is not registered to do business in Texas, it does not have a registered agent for service
in Texas, it does not employ any agents or services in Texas, and it does not directly sell
products to residents of Texas.2
Although Plaintiff acknowledged in his Original Petition that Interpump is a foreign
company with its principal place of business in Italy,3 Plaintiff claimed—without any
basis—that Interpump could be served with process by serving the Texas Secretary of
State.4 Plaintiff then attempted to serve Interpump via registered mail sent to the Texas
Secretary of State. The citation, as well as Plaintiff’s compliant, were written in English.
As a foreign corporation, however, Plaintiff was required to serve Interpump in
compliance with The Hague Convention on the Service Abroad of Judicial and Extra-
Judicial Documents in Civil and Commercial Matters, 20 UST 361. Service of process
through the Texas Secretary of State was not proper service. Plaintiff has therefore failed
to properly serve Interpump, and Plaintiff’s attempt at service should be quashed.
2 Exhibit A, Declaration of Massimiliano Bizzarri.
3 See Plaintiff’s Original Petition, ¶5.
4 See Plaintiff’s Original Petition, ¶5.
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II. ARGUMENT AND AUTHORITIES
Italy is a signatory to the Hague Convention. Pursuant to article 5 of the Hague
Convention, (1) all documents must be forwarded to the foreign county’s Central Authority
for service and (2) and such documents must include a proper translation. In addition,
Italy’s declaration to Article 5(3) requires complete translation of documents (including not
only the summons, but also the complaint and all exhibits) into Italian. Moreover, to
effectuate service through the Hague Convention, a plaintiff is required to complete and
submit a USM-94. Once service has been properly effectuated through the Central
Authority, a Hague Certificate is issued by the foreign country.
As in this case, when the Hague Convention applies, compliance with its provisions
is “mandatory.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698-99
(1988). “Itis the responsibility of the one requesting service, not the process server, to
see that service is properly accomplished.” Primate Const. Inc. v. Silver, 884 S.W.2d 151,
153 (Tex. 1994).
The Hague Convention applies here, and Plaintiff wholly failed to satisfy its
requirements in attempting to serve Interpump. Plaintiff’s citation and complaint are not
translated into Italian (nor is there indication of any requests for such translation). The
Texas Secretary of State mailed the citation to a purported Interpump address in Italy, but
the documents were not forwarded to Italy’s Central Authority as required by the Hague
Convention. Plaintiff failed to provide this Court with a copy of the executed USM-94, and
he failed to provide this Court with an executed Hague Certificate. Plaintiff’s attempt at
service is consequently invalid and should be quashed. See Wuxi Taihu Tractor Co. v.
York Grp., Inc., No. 01-13-00016-CV, 2014 Tex. App. LEXIS 12888, at *15 (App.—
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Houston [1st Dist.] Dec. 2, 2014, pet. denied) (holding that service on foreign Chinese
defendant through Texas Secretary of State, rather than Hague Convention, without an
accompanying Chinese translation, was not valid service of process).
III. CONCLUSION
Plaintiff’s failure to properly serve Interpump in compliance with the Hague
Convention renders his attempt to serve Interpump with process invalid as a matter of
law. Service on Interpump therefore should be quashed.
WHEREFORE, Defendant Interpump Group S.p.A. respectfully requests that its
Motion to Quash Service filed Subject to its Special Appearance be in all things granted.
Respectfully submitted,
JOHANSON & FAIRLESS, L.L.P.
By: Kelley J. Friedman
KELLEY J. FRIEDMAN, #00796582
1456 First Colony Blvd.
Sugar Land, Texas 77479
(281) 313-5000
Fax: (281) 340-5100
Email: KFriedman@jandflaw.com
ATTORNEYS FOR DEFENDANT,
INTERPUMP GROUP S.p.A.
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CERTIFICATE OF SERVICE
I, KELLEY J. FRIEDMAN, do hereby certify that a true and correct copy of the
above and foregoing instrument has been forwarded to the following attorneys of record
by electronic filing, certified mail (return receipt requested), facsimile, and/or hand-
delivery, on this 12 th day of February, 2019:
Jason A. Itkin / Cory D. Itkin Timothy Nisbet
Ryan S. MacLeod / Jacob Karam Johanson & Fairless, LLP
Arnold & Itkin LLP 1456 First Colony Blvd.
6009 Memorial Drive Sugar Land, Texas 77479
Houston, Texas 77007 tnisbet@jandflaw.com
jkaram@ArnoldItkin.com
JAITeam@ArnoldItkin.com
John K. (Ken) Woodard
Bush & Ramirez, PLLC
5615 Kirby Drive, Suite 900
Houston, Texas 77005
kwoodard.atty@bushramirez.com
Kelley J. Friedman
KELLEY J. FRIEDMAN
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CAUSE NO. 2018-36443 ROBERT PETERSON IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS INTERPUMP GROUP, SPA, GENERAL PUMP COMPANY, LLC, OILNEX, LLC, NEXOIL, LLC, and DCS CONSULTING, INC. 157TH JUDICIAL DISTRICT DEFENDANT INTERPUMP GROUP S.p.A.’S MOTION TO QUASH SUBJECT TO ITS SPECIAL APPEARANCE TO THE HONORABLE COURT: COMES NOW, Defendant INTERPUMP GROUP S.p.A. (“Interpump”) and subject to its Special Appearance, moves to quash Plaintiff’s attempt to serve Interpump by serving the Texas Secretary State. As a foreign Defendant, Interpump must be served through the Hague Convention, which Plaintiff did not do. In support of this Motion, Interpump would show the Court as follows: INTRODUCTION This is a personal injury lawsuit. Plaintiff, Robert Peterson, sued various entities, including Interpump, after he was injured while servicing a pressure washer. He asserts product liability claims including marketing defect, design defect, manufacturing defect, The filingof thismotion does not waive Interpump’s Special Appearance. See T . P. 120a (providing that other pleas, pleadings, and motions, if made subject to the special appearance, may be filed without entering a general appearance); Knight Corp. Knight, 367 S.W.3d 715, 724 (Tex. App. Houston [14th Dist.] 2012, no pet.) (“Courts generally do not find waiver of a special appearance when a party neither acknowledges the trialcourt's jurisdictionnor takes actions inconsistent with challenging personal jurisdiction.”); Koch Graphics, Inc. Avantech, Inc., 803 S.W.2d 432, 433 (Tex. App.Dallas 1991, no writ) (motion to quash service that was filed subject to special appearance did not waive same). and failure to warn against several defending entities, including Interpump. In that regard, Plaintiff alleges (without proof accompanying his petition) that one or more of various entities manufactured, designed, distributed, installed, serviced and/or sold the pressure washer that he was using at the time of the incident. Interpump is a foreign corporation with its principal place of business in Italy. Interpump is not a resident of the State of Texas. It does not maintain an office in Texas, it is not registered to do business in Texas, it does not have a registered agent for service in Texas, it does not employ any agents or services in Texas, and it does not directly sell products to residents of Texas.2 Although Plaintiff acknowledged in his Original Petition that Interpump is a foreign company with its principal place of business in Italy,3 Plaintiff claimed—without any basis—that Interpump could be served with process by serving the Texas Secretary of State.4 Plaintiff then attempted to serve Interpump via registered mail sent to the Texas Secretary of State. The citation, as well as Plaintiff’s compliant, were written in English. As a foreign corporation, however, Plaintiff was required to serve Interpump in compliance with The Hague Convention on the Service Abroad of Judicial and Extra- Judicial Documents in Civil and Commercial Matters, 20 UST 361. Service of process through the Texas Secretary of State was not proper service. Plaintiff has therefore failed to properly serve Interpump, and Plaintiff’s attempt at service should be quashed. 2 Exhibit A, Declaration of Massimiliano Bizzarri. 3 See Plaintiff’s Original Petition, ¶5. 4 See Plaintiff’s Original Petition, ¶5. 2 II. ARGUMENT AND AUTHORITIES Italy is a signatory to the Hague Convention. Pursuant to article 5 of the Hague Convention, (1) all documents must be forwarded to the foreign county’s Central Authority for service and (2) and such documents must include a proper translation. In addition, Italy’s declaration to Article 5(3) requires complete translation of documents (including not only the summons, but also the complaint and all exhibits) into Italian. Moreover, to effectuate service through the Hague Convention, a plaintiff is required to complete and submit a USM-94. Once service has been properly effectuated through the Central Authority, a Hague Certificate is issued by the foreign country. As in this case, when the Hague Convention applies, compliance with its provisions is “mandatory.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698-99 (1988). “Itis the responsibility of the one requesting service, not the process server, to see that service is properly accomplished.” Primate Const. Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994). The Hague Convention applies here, and Plaintiff wholly failed to satisfy its requirements in attempting to serve Interpump. Plaintiff’s citation and complaint are not translated into Italian (nor is there indication of any requests for such translation). The Texas Secretary of State mailed the citation to a purported Interpump address in Italy, but the documents were not forwarded to Italy’s Central Authority as required by the Hague Convention. Plaintiff failed to provide this Court with a copy of the executed USM-94, and he failed to provide this Court with an executed Hague Certificate. Plaintiff’s attempt at service is consequently invalid and should be quashed. See Wuxi Taihu Tractor Co. v. York Grp., Inc., No. 01-13-00016-CV, 2014 Tex. App. LEXIS 12888, at *15 (App.— 3 Houston [1st Dist.] Dec. 2, 2014, pet. denied) (holding that service on foreign Chinese defendant through Texas Secretary of State, rather than Hague Convention, without an accompanying Chinese translation, was not valid service of process). III. CONCLUSION Plaintiff’s failure to properly serve Interpump in compliance with the Hague Convention renders his attempt to serve Interpump with process invalid as a matter of law. Service on Interpump therefore should be quashed. WHEREFORE, Defendant Interpump Group S.p.A. respectfully requests that its Motion to Quash Service filed Subject to its Special Appearance be in all things granted. Respectfully submitted, JOHANSON & FAIRLESS, L.L.P. By: Kelley J. Friedman KELLEY J. FRIEDMAN, #00796582 1456 First Colony Blvd. Sugar Land, Texas 77479 (281) 313-5000 Fax: (281) 340-5100 Email: KFriedman@jandflaw.com ATTORNEYS FOR DEFENDANT, INTERPUMP GROUP S.p.A. 4 CERTIFICATE OF SERVICE I, KELLEY J. FRIEDMAN, do hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to the following attorneys of record by electronic filing, certified mail (return receipt requested), facsimile, and/or hand- delivery, on this 12 th day of February, 2019: Jason A. Itkin / Cory D. Itkin Timothy Nisbet Ryan S. MacLeod / Jacob Karam Johanson & Fairless, LLP Arnold & Itkin LLP 1456 First Colony Blvd. 6009 Memorial Drive Sugar Land, Texas 77479 Houston, Texas 77007 tnisbet@jandflaw.com jkaram@ArnoldItkin.com JAITeam@ArnoldItkin.com John K. (Ken) Woodard Bush & Ramirez, PLLC 5615 Kirby Drive, Suite 900 Houston, Texas 77005 kwoodard.atty@bushramirez.com Kelley J. Friedman KELLEY J. FRIEDMAN 5