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Gazlar Istihsal v. International Technology & Knowledge Company, Inc.

United States District Court, W.D. Pennsylvania

December 23, 2019

HABAS SINAI VE TIBBI GAZLAR ISTIHSAL A.S., Plaintiff,
v.
INTERNATIONAL TECHNOLOGY & KNOWLEDGE COMPANY, INC. and INTEKNO TEKNOLOJI TRANSFER SANAYI VE TICARET A.S., Defendants.

          MEMORANDUM ORDER

          PATRICIA L. DODGE United States Magistrate Judge

         Plaintiff Habas Sinai Ve Tibbi Gazlar Istihsal A.S. brings this action against Defendants International Technology & Knowledge Co., a Pennsylvania corporation (“Intekno U.S.”), and Intekno Teknoloji Transfer Sanayi Ve Ticaret A.S., a Turkish corporation (“Intekno Turkey”). In this breach of contract action, Plaintiff asserts that Defendants failed to deliver certain goods, forcing Plaintiff to obtain them elsewhere at an increased cost. Plaintiff alleges that the agreement that forms the basis of its claim is governed by the United Nations Convention on the International Sale of Goods or Pennsylvania law. (Compl. ¶¶ 17-21.)

         Presently before the Court is Plaintiff's Motion for Alternative Service on Intekno U.S. (ECF No. 9). In its motion, Plaintiff seeks leave to serve Intekno U.S. by electronic mail upon its Chief Executive Officer, Halil Kulluk, who is presently in Istanbul, Turkey. At the direction of the Court, Plaintiff submitted a brief in further support of its motion. (ECF No. 11). For the reasons that follow, Plaintiff's motion will be denied.

         After Plaintiff and Defendants agreed to the agreed to the contractual terms regarding the sale and delivery of the graphite electrodes, Intekno U.S issued a ProForma Invoice consistent with the agreed-upon sale terms in April 2017. (Compl. ¶¶ 9-10 & Ex. 1.) The ProForma Invoice identified Pittsburgh telephone and facsimile numbers and a Pittsburgh address for Intekno U.S., and also identified Intekno Turkey as the representative agent for Intekno U.S. with respect to the transaction. (Compl. Ex. 1.)

         The Pennsylvania Bureau of Corporations identifies Intekno U.S. as an active Pennsylvania corporation with an address of 2908 McKelvey Road, Pittsburgh, Pennsylvania 15221 and identifies Halil Kulluk as the President and Treasurer of Intekno U.S. with an address of 4885A McKnight Road, Pittsburgh, Pennsylvania 15237. (ECF No. 9 Ex. 1.)

         Plaintiff's Attempts at Service

         On August 20, 2019, Plaintiff filed a Motion for Enlargement of Time for Service Upon Defendant (Intekno U.S.) (ECF No. 7.)[1] In its motion, Plaintiff stated that it had engaged a process server to serve Intekno U.S. The process server attempted to serve Intekno U.S. at the two addresses noted above in Pittsburgh, but confirmed that neither address was affiliated with Intekno U.S. Upon conducting additional investigation, the process server located Halil Kulluk, Intekno U.S.'s sole officer, at an address in Cambridge, Massachusetts. Plaintiff attempted to serve Kulluk at the address in Cambridge from June to August 2019 and was continuing to do so. (Troupe Decl. ¶¶ 4-11, 13.)[2] See also Jacobs Decl. ¶¶ 6-7.[3]

         On October 7, 2019, Plaintiff's counsel received a phone call from Kulluk, who stated that he was calling from Istanbul, Turkey. (Jacobs Decl. ¶ 8.)[4] Kulluk stated that: he received the summons and complaint in this matter through a mailing from his daughter (who retrieved them from the Cambridge location) (id. ¶ 9); Intekno U.S. does not have a physical location within the United States (id. ¶ 10); all Intekno U.S. business operations are conducted through him (id. ¶ 12); Intekno U.S. does not have a registered agent for purposes of authorized acceptance of service in the United States (id. ¶ 13); Kulluk intended to contact Pittsburgh counsel in connection with this lawsuit; and in the meantime, Plaintiff should continue to communicate with him through his email address, which he provided (id. ¶¶ 14-15 & Ex A.)

         On October 14, 2019, Plaintiff's counsel received correspondence from Intekno's Pittsburgh counsel, who advised that “we represent Intekno, owned by Halil Kulluk, in litigation filed by Habas, in the Western District Court.” In a subsequent telephone call, counsel for Plaintiff was advised by Intekno's counsel that they were considered entering their appearance on behalf of both Intekno U.S. and Intekno Turkey and advise Plaintiff if they were authorized to accept service of process on behalf of both Intekno entities. However, apparently they have not done so. (Id. ¶¶ 17-18 & Ex. C.)

         Rule 4 Requirements

         Rule 4(h) of the Federal Rules of Civil Procedure addresses service of process upon a corporation. Unless otherwise provided, a corporation must be served:

(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) 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 and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the defendant; or
(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an ...

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