Opinion
No. 04 Cv. 3600 (SWK).
February 14, 2005
OPINION ORDER
Bayerische Hypo-und Vereinsbank AG ("HVB"), Bank Austria Creditanstalt Holdings Corporation ("Holdings Corp."), and Bank Austria Creditanstalt Corporate Finance Inc. ("Corporate Finance"), (collectively, the "HVB Movants"), move to quash service of process pursuant to Rules 4, 12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is granted. Discussion
In the alternative, the HVB Movants ask the Court, pursuant to Rules 12(b)(1) and 12(b)(6), to dismiss Plaintiffs' First Amended Complaint. Given the Court's determination that service on the HVB Movants was patently improper, however, it is not necessary to reach the question of dismissal.
The HVB Movants filed a motion to quash service on December 21, 2004. Under Local Civil Rule 6.1, opposition, if any, to the Motion to Quash Service was due by January 6, 2005. Local Civil Rule 6.1. To date, no opposition has been received.
The lack of opposition to the HVB Motion to Quash is hardly surprising in light of the fact that Plaintiffs' counsel and pro se Plaintiff Edward D. Fagan has missed virtually every deadline the Court has set in this matter and has submitted official applications to the Court on torn notebook paper.
In this case, plaintiffs have attempted service on four of HVB's past and present subsidiaries: Bank Austria Creditanstalt American Corporation, Greenwich ("American Corp."), the former Bank Austria Creditanstalt Trade Finance Services, Inc. ("Trade Finance Services"), Holdings Corp., and Corporate Finance (collectively, the "HVB Affiliates").
Two of these HVB Affiliates — American Corp. and Trade Finance Services — have been dissolved. See Declaration of Gabrielle Falger, dated December 20, 2004 ("Falger Decl.") ¶ 4. The others — Holdings Corp. and Corporate Finance — are currently wholly owned subsidiaries of non-party HVB, not Defendant Bank Austria. Id. ¶¶ 4, 7. Plaintiffs purportedly believe that the HVB Affiliates are alter egos of Bank Austria and that Bank Austria is therefore amenable to service by service on the HVB Affiliates. However, as demonstrated by the Declaration of Gabrielle Falger, the HVB affiliates are not "also known as" Bank Austria and Bank Austria is not "doing business" in the name of the HVB Movants. See Falger Decl. ¶ 7. It is also clear that the HVB Affiliates are not owned by Bank Austria, are not Bank Austria's alter egos, and have not been named as defendants in their own right; thus, the HVB Movants are not proper parties to this action.
In the absence of any opposition from the plaintiffs, and pursuant to the Court's authority to quash improper service of process, see James v. Booz-Allen Hamilton, Inc., 206 F.R.D. 15, 17-18 (D.D.C. 2002), HVB's motion is granted. Service upon the HVB Movants is hereby quashed.
SO ORDERED.