OPINION AND ORDER

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, seeking to recover clean up costs, freight demurrage, and other expenses arising from a spill of hydrochloric acid ("HDL) from a sealed shipping container after it was packed in drums and stowed aboard the vessel by M/S Global Multichem and carried across the ocean from Pipavav, India to Houston, Texas, are the following matters:

In the governing second amended complaint (#43), Maersk sues Defendants as freight forwarders, logistics providers, non-vessel operating common carrier ("NVOCC"), manufacturers, receivers and/or shippers of the HCL cargo for negligent failure to comply with regulations for the shipment of hazardous materials, breach of service contracts or contracts of carriage, and contribution of at least $243,775.03 under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601 et seq.

Samrat's Opposition (#55) to Maersk's Notice of Dismissal (#54)

On February 8, 2016 Maersk filed a voluntary notice of dismissal with prejudice under Federal Rule of Civil Procedure 41(a)(1)(i) against Safewater (I) and Safewater (#54) before they filed an answer or a motion for summary judgment, but after Maersk had settled with them. The notice expressly stated that Maersk's claims against Samrat remained pending.

Samrat's objections to the notice of dismissal (#54) were filed on February 8, 2016. Samrat first argues that because Samrat has filed responsive pleadings to the complaint and subsequently a cross-claim against the Safewater Defendants, under Rule 41(a)(2) Maersk was required, but failed, to file a motion and obtain a court order for the dismissal. Samrat contends that in the parties' Second Joint Discovery/Case Management Plan (#40 in ¶ 6), Samrat made clear its intention to cross-claim against the Safewater Defendants and to add Global Multichem as a third party defendant, so the Court should leave Safewater Defendants in the case as cross-claim defendants of Samrat and not dismiss them on Maersk's notice.

The Court observes that Samrat filed its cross-claim against Safewater (I) and Safewater (#49) on January 25, 2016. That same day Maersk's attorney filed an order of partial dismissal of Safewater I and Safewater (#48), which this Court struck (#53) because there was no motion accompanying it, because the document was designated as an order without any explanation, and because Samrat opposed it.3 Approximately two weeks later Maersk filed its notice of dismissal, to which Samrat voiced its objections the same day.

In response (#56), highlighting the fact that Samrat provides no legal authority for any of its arguments, Maersk first points out that as a matter of law "[t]he notice of dismissal is `self-effectuating'" and "no order or other action by the district court is required." In re Amerijet Int'l, Inc., 785 F.3d 967, 973 (5th Cir. 2015). The Court has no role in such a dismissal. Id. Furthermore Samrat's filing of an answer does not bar Maersk from filing a Rule 41 notice of voluntary dismissal as to another defendant. Plains Growers, Inc. By and Through Florists' Mutual Ins. Co. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 255 (5th Cir. 1973)(dismissal allowed as to defendants that have not filed an answer or motion for summary judgment even when the case remains pending against other defendants that have answered).

Second, Maersk questions the validity of the service on the Safewater Defendants by "Federal Express; U.S. International Mail, postage prepaid; e-mail, and facsimile" (#51, Certificate of Service, and #52, Supplemental Certificate of Service) of Samrat's cross-claim on the Safewater Defendants, which are located in India, which is a signatory to the Hague Convention on Service Abroad of Judicial Documents and Extrajudicial Documents in Civil or Commercial Convention. Samrat never attempted service under the Hague Convention, under which the methods of service appear to be limited to those under Rule 4(f)(3)("by other means not prohibited by international agreement, as the court orders"),4 and which apparently has not been implemented. Maersk asks the court to strike the Certificate of Service (#51) and Supplemental Certificate (#52) as improper. Samrat attempted alternative service without asking the court and without obtaining an order from the court permitting alternative service, both required by Rule 4(f)(3). In addition Maersk emphasizes that even though Magistrate Judge Stacy established a lengthy schedule on May 13, 2015 in order to allow Samrat until January 12, 2016 to add possible responsible parties as defendants and effect service under the Hague Convention, Samrat did nothing for nine months.

The Court agrees with Maersk as a matter of law that Samrat's cross claim against the Safewater Defendants does not bar Maersk's voluntary dismissal of the two entities as to Maersk's claims against them. See also, e.g., Bechuk v. Home Depot U.S.A., Inc., 814 F.3d 287, 291 (5th Cir. 2016)(quoting In re Amerijet); In re Heritage Organization, LLC, 466 B.R. 862, 873 (N.D. Tex. 2012)(citing Plains Growers); Lankford v. National Carriers, Inc., Civ. No. 6:12-1280, 2013 WL 672454, at *6 (W.D. La. Jan. 14, 2014)(same). Nor did Samrat comply with the requirements for alternative service under Rule 4(f)(3). The Court therefore OVERRULES Samrat's objections and affirms the legal propriety of Maersk's voluntary dismissal with prejudice of its claims against the Safewater Defendants.

Samrat's Request for Entry of Default Against Cross-Claim Defendant Safewater I (#57) and Samrat's Corrected Motion to Strike (#60) Plaintiff's Opposition (#58) to #57

In its motion for entry of default (#57) against Safewater I and Safewater, Samrat states that it served its cross-claim (#49) on Safewater I and Safewater on January 26, 2016 (#51, proof of service by Federal Express, U.S. International Mail, postage prepaid, imaged e-mail, and facsimile by the attorney at law of the State of Maryland and #52, supplemental proof of service with copies of the Federal Express delivery confirmation).5 Under Rule 12(a)(2), Safewater I and Safewater were required to serve answers to the cross-claim within twenty days, or by February 15, 2016. They failed to do so and therefore are in default. Samrat requests entry of default against the Safewater Defendants pursuant to Federal Rule of Civil Procedure 55(a).

Maersk opposes the request on the grounds that Samrat has failed to establish proper service of process on Safewater I and Safewater, foreign companies located in India, under Hague Convention on Service Abroad of Judicial Documents and Extrajudicial Documents in Civil or Commercial Convention ("Hague Convention"), or under Rule 4(h)(2)("at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i)) and 4(f) of the Federal Rules of Civil Procedure. Without such proper service of process, entry of default is precluded. Hazim v. Schiel & Denver Book Group, Ci. A. No. H-12-1286, 2013 WL 2152109, at *1, 2013 U.S. Dist. LEXIS 69837 at *2-3 (S.D. Tex. May 16, 2013)(without proper service, the court lacks jurisdiction to enter default under Rule 55(a)), citing Sandoval v. Bluegrass Reg. Mental Health-Mental Retardation Bd., No. 99-5018, 2000 WL 1257040, at *5 (6th Cir. July 11, (Rosenthal, J.) 2000)("[T]here must be effective service of process on a defendant before an entry of default can be made."). In Hazim Judge Rosenthal examined whether an entry of default and default judgment were justified against a foreign defendant found in the United Kingdom, with service of process effected by a Federal Express and personal service on the office manager. She ultimately concluded that service was improper because there was no service under the Hague Convention and the plaintiff failed to explain how the methods of service (Federal Express and personal service) were permissible under American, British, and international law and therefore denied the request for entry of default.6 Hazim, 2013 WL 2152109, at *3, 2013 U.S. Dist. LEXIS at *6-9. The Safewater Defendants never appeared in this lawsuit, so they had to be served in India. Maersk insists that Safewater has never claimed, nor is there any evidence in the record, that Samrat ever attempted to serve Safewater by sending the required documents to the Central Authority in India under the Hague Convention nor under Rules 4(h)(2)(requiring it to serve Safewater "at a place not within any jurisdiction of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i)) and 4(f). Therefore, as in Hazim, there is no jurisdiction over the Safewater Defendants to permit entry of default. Samrat has not provided any evidence (1) that India allows service by International Mail, Federal Express, email or facsimile, or (2) that the Clerk of this Court sent the required documents by International Mail to the Safewater Defendants, as would be required for alternative service under Rule 4(f)(2)(C)(ii), or (3) that this Court authorized an alternative means of service under Rule 4(f)(3).

In response Samrat moved to strike Maersk's opposition (#60). Noting that under Rule 55(a) the Clerk must enter a party's default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend" as "shown by affidavit or otherwise," Samrat maintains that service of pleadings after a complaint has been filed is governed by Federal Rule of Civil Procedure 5; Rule 5(b)(2)(C) expressly permits service by "mailing it to the person's last known address—in which event service is complete upon mailing." Samrat insists that service of Samrat's cross-claim on Safewater I and Safewater was effected by Federal Express, U.S. International Mail, postage prepaid, imaged e-mail, and facsimile on January 26, 2016,7 as is evidenced by the Certificate of Service and Supplemental Certificate of Service. Thus an answer to the cross-claim was due by February 19, 2016, but none was filed. Moreover, Samrat incorrectly maintains that Hazim discussed the adequacy of a complaint, not a later filed pleading, and therefore is inapposite.

In response (#61) to Samrat's corrected motion to strike, Maersk points out that Samrat's cross-claim was a new claim for contribution and indemnity and thus it is subject to service under Rule 5(a)(2), which provides in relevant part, "[A] pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4," not under 5(b)(2)(C). See Waters v. Farmers Texas County Mutual Ins. Co., 9 F.3d 397, 399 (5th Cir. 1993). Because Samrat did not serve the Cross-Claim on the Safewater Defendants under Rule 4, entry of default is prohibited. Alvarez v. Well-S Indus., No. 12-CV-8835(VSB)(KNF), 2014 WL 289548, at *1, 2014 WL Dist. LEXIS 87173, at *3-5 (S.D.N.Y. 2014). Maersk therefore asks that the Court deny Samrat's request for entry of default pursuant to Rule 55(a).

Just because a brief disagrees with another party's argument does not warrant striking it. Indeed most litigation is comprised of such disagreements, which it is the role of the Court to resolve. Thus the Court denies the motion to strike Maersk's opposition, but addresses the merits of the dispute. The Court also does not strike the certificates of service because if they are invalid, they have no effect on the case.

Furthermore, here, too, the Court agrees with Maersk that service on the two Indian Safewater entities had to be made under the Hague Convention since both the United States and India are parties to it. As noted by the court in Hazim, the United States Supreme Court has stated that "`compliance with the Hague Convention is mandatory in all cases to which it applies.'" Hazim, 2013 WL 2152109, at *3, quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988). The Court therefore denies Samrat's request for entry of default because of lack of jurisdiction and Samrat's corrected motion to strike, also because of lack of jurisdiction and because Rule 4, not Rule 5(b)(2)(C), governs service of the new cross claim.

Samrat's Motion for Consolidation (#65)

Samrat moves to consolidate this case with H-16-1564 under Rule 42(a)8 on the grounds that they involve common questions of law and fact because both assert the same claims between Maersk and Samrat. Both actions are pending in the Southern District of Texas, but the new one is presided over by the Honorable Alfred Bennett. Questions of liability are the same, i.e, the invoice amounts due. Samrat argues that there is no risk of confusion in consolidation and that consolidation will conserve judicial resources and reduce the time of trying both cases separately.

In its response in opposition (#66), Maersk points out that the instant case was filed on June 13, 2013 and is much further along in the procedural and discovery process that H-16-1565, filed almost three years later. A comparison of the docket sheets demonstrates a wide gap. Furthermore in the instant case Maersk has settled with Defendants ATNI, Inc. and the Safewater entities. In the new case Plaintiff only obtained summons for Safewater I and Safewater on September 7, 2016, and there is no entry in the record showing service has been effected on them in India. A court may deny a motion to consolidate where "cases were at different stages of preparedness for trial." St. Bernard General Hospital, Inc. v. Hospital Service Ass'n of New Orleans, Inc., 712 F.2d 978, 990 (5th Cir. 1983), cert. denied, 466 U.S. 970 (1984).9 Furthermore the facts and the law are not the same in the two suits. The instant case is centered on the spill of HCL from a container after it arrived in Houston, with the central issue being whether Samrat is responsible, either through indemnity, negligence, or breach of contract, to reimburse Maersk for its clean up and related expenses. The new suit asserts breach of contract claims for unpaid breach of contract claims in invoices attached as Appendix 1 to the complaint in the new suit. Thus the legal and factual issues are different. Therefore consolidation would not serve conservation of judicial resources.

The Court again agrees with Maersk that consolidation is not appropriate here and denies Samrat's motion.

Accordingly, for reasons stated in the Opinion and Order, the Court

ORDERS the following: