Opinion
CASE NO. 22-60219-CIV-RS
03-24-2023
CAYAGO TEC GMBH and Cayago America, Inc., Plaintiffs, v. IAQUA (HONG KONG) LIMITED, Defendant.
Peter Emerson Berlowe, Assouline & Berlowe, P.A., Miami, FL, Jennifer L. Friedman, Pro Hac Vice, Law Offices of Jennifer L. Friedman, PLLC, Lancaster, NY, Peter Andrew Koziol, Assouline & Berlowe, P.A., Boca Raton, FL, for Plaintiffs. Lorri Lomnitzer, The Lomnitzer Law Firm, P.A., Boca Raton, FL, for Defendant. Iaqua (Hong Kong) Limited, Pro Se.
Peter Emerson Berlowe, Assouline & Berlowe, P.A., Miami, FL, Jennifer L. Friedman, Pro Hac Vice, Law Offices of Jennifer L. Friedman, PLLC, Lancaster, NY, Peter Andrew Koziol, Assouline & Berlowe, P.A., Boca Raton, FL, for Plaintiffs. Lorri Lomnitzer, The Lomnitzer Law Firm, P.A., Boca Raton, FL, for Defendant. Iaqua (Hong Kong) Limited, Pro Se. ORDER ON DEFENDANT'S MOTION TO DISMISS RODNEY SMITH, UNITED STATES DISTRICT JUDGE
This matter is before the Court upon Defendant's Motion to Dismiss [DE 16], Plaintiff's Opposition [DE 20], and Defendant's Reply [DE 23]. For the reasons that follow, Defendant's Motion is granted. I. BACKGROUND
Plaintiffs, Cayago Tec GmbH and Cayago Americas, Inc. filed their Complaint [DE 1] in this action against Defendant, iAQUA (Hong Kong) Limited ("iAQUA"), on February 1, 2022. According to the Complaint, Cayago Tec is a private limited liability company duly organized and existing under the laws of the Federal Republic of Germany, while Cayago Americas is a Florida corporation with its principal place of business in Fort Lauderdale, Florida. (Compl. ¶¶ 1-2.) iAQUA is a foreign company existing and duly organized under the laws of the People's Republic of China ("China"), with its principal place of business in both Shenzhen and Hong Kong, China. (Compl. ¶ 3.) The Complaint alleges infringement of three patents by iAQUA. (Compl. ¶¶ 38-79.)
Defendant moves to dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. Plaintiffs attempted to perfect service of process on Defendant by personally serving Mr. Danish Syed Mohammed, iAQUA's Managing Director, while he attended a court hearing for a separate matter in the United States District Court for the Southern District of Florida. Defendant argues that service of process in this manner was improper and moves to dismiss on this basis. Plaintiffs argue in response that Defendant was properly served because Federal Rule of Civil Procedure 4(h) allows iAQUA's managing director to be personally served while voluntarily present in this judicial district on behalf of Defendant.
II. LEGAL STANDARD
Service of process on a foreign corporate defendant must comply with Federal Rule of Civil Procedure 4(h). Pursuant to Rule 4(h)(2), to perfect service on a corporation not within any judicial district of the United States, a plaintiff must conduct service of process in any manner prescribed by Rule 4(f) for serving an individual except for personal delivery. Fed. R. Civ. P. 4(h)(2) (emphasis added).
Pursuant to Rule 4(f), service on a foreign defendant must comply with one of three provisions. Fed. R. Civ. P. 4(f). Rule 4(f)(1) permits a plaintiff to serve a foreign corporate defendant by any means specified by any international agreement on service of process ratified by the nation at issue. Id. Rule 4(f)(2) provides several methods of service in situations where there is no applicable international agreement in force. Id. Finally, Rule 4(f)(3) permits a party to use an alternative method of service if the party obtains the permission of the Court, and an international agreement does not otherwise prohibit the requested method. Id.
The Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the "Hague Service Convention") is a multilateral international treaty governing the service of process on foreign defendants not within any judicial district of the United States. 20 U.S.T. 362, T.I.A.S. 6638, Art. 1. Article 1 of the Hague Service Convention states: "The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad." 20 U.S.T., at 362. Both the United States and China are signatories to the Hague Service Convention. The Hague Service Convention requires each signatory-nation to establish a central authority to receive requests for service of documents from other nations. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698-99, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). Once a central authority receives a request in the proper form, it must serve the documents by a method prescribed by the internal law of the receiving nation or by a method designated by the requestor and compatible with that law. Id. The central authority must then provide a certificate of service that conforms to a specified model provided by the signatory nation. Id.
III. DISCUSSION
Defendant moves to dismiss on the basis that service of process in this matter was improper and in violation of Fed. R. Civ. P. 4(h). Defendant argues that the United States and China are both signatories to the Hague Service Convention, and thus service of process on Defendant should have been effected in accordance with that international agreement pursuant to Fed. R. Civ. P. 4(f)(1). Plaintiffs argue in response that Defendant was properly served because Fed. R. Civ. P 4(h) allows a foreign corporation to be served via personal service on its managing director, and because iAQUA's managing director was personally served while he was voluntarily present in this judicial district on behalf of Defendant.
Plaintiffs reference to Rule 4(h)(1), which applies to corporations found within a judicial district of the United States, is misplaced. Plaintiffs do not allege that Defendant has an office or place of business within the United States. Thus, because Defendant is duly organized under the laws of China and has its principal place of business in China, Plaintiffs must serve Defendant by means specified in an international agreement or in a manner that does not offend an international agreement. Fed. R. Civ. P. 4(f)(1).
The Court finds that Plaintiffs' attempted service of process onto Defendant was improper under Rule 4(h) and Rule 4(f)(1) given that both the United States and China have ratified the Hague Service Convention. Because both nations have signed and ratified the Hague Service Convention, which by its own force governs service of process on foreign defendants abroad, Plaintiffs should have followed the provisions of the treaty in attempting to serve Defendant. Thus, any attempted service of process in this matter not conforming to the Hague Service Convention is null and void, and without effect to provide notice to Defendant of this judicial proceeding.
"Dismissal of a complaint is inappropriate when there exists a reasonable prospect that service may yet be obtained. In such instances, the district court should, at most, quash service, leaving the plaintiffs free to effect proper service." Jack E. Dominik, P.A. v. Comsof N.V., 293 F. Supp. 2d 1288, 1290 (S.D. Fla. 2003) (quoting Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992)). Thus, Plaintiffs will be granted an opportunity to perfect service of process in this matter.
Accordingly, and upon due consideration, it is hereby,
ORDERED that:
1. Defendant's Motion to Dismiss [DE 16] is GRANTED.
a. Plaintiffs' prior purported service of process is hereby QUASHED.
b. Plaintiffs must perfect service of process onto Defendants in accordance with the Fed. R. Civ. P. 4 on or before April 28, 2023.
c. Failure to comply with this Order shall result in final dismissal of this action without further notice.
DONE and ORDERED in Fort Lauderdale, Florida, this 24th day of March 2023.