Opinion
Case No. 20-cv-01377-SVK
08-12-2020
CENTRE WAY COMPANY LIMITED, Plaintiff, v. FUZHOU PUHUA MINGHUI TRADING CO. LTD., Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR SUBSTITUTED SERVICE
Re: Dkt. No. 9
Plaintiff Centre Way Company Limited filed the instant motion asking this Court to order substituted service pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure. Dkt. 9. Specifically, Plaintiff asks this Court to order substituted service on Defendant Fuzhou Puhua Minghui Trading Co. Ltd., a Chinese company, by way of hand delivering documents to the California Secretary of State's office in Sacramento. Id.
The motion is erroneously titled "Order Granting Motion for Substituted Service." Dkt. 9.
Rules 4(f) and 4(h)(2) of the Federal Rules of Civil Procedure govern service of process on individuals and corporations outside the United States. Rule 4(h)(2) provides for service on a corporation, partnership, or association "in any manner prescribed by Rule 4(f) . . . ." Fed. R. Civ. P. 4(h)(2). Rule 4(f)(1) authorizes service "by any internationally agreed means of service that is reasonably calculated to give notice," including through the Hague Convention. Fed. R. Civ. P. 4(f)(1). Alternatively, Rule 4(f)(3) allows service "by other means not prohibited by international agreement, as the court orders." Fed. R. Civ. P. 4(f)(3). Rule 4(f)(3) does not "create a hierarchy of preferred methods of service of process," and "service of process under Rule 4(f)(3) is neither a last resort nor extraordinary relief." Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1014-15 (9th Cir. 2002) (internal quotations and citation omitted). Rather, the rule "is merely one means among several which enables service of process on an international defendant." Id. at 1015. Rule 4(f)(3) simply requires that substituted service: (1) is directed by the court; (2) is not prohibited by international agreement; and (3) comports with due process. Id. at 1014-1016. "[T]he task of determining when the particularities and necessities of a given case require alternate service of process under Rule 4(f)(3)" is left to the sound discretion of the district court. Id. at 1016.
Plaintiff avers that Defendant is located in China. Dkt. 9 at 2, 8. China is a signatory to the Hague Convention, and Defendant could be served in that manner or pursuant to Rule 4(f)(3). Here, Plaintiff seeks to serve Defendant pursuant to Rule 4(f)(3). Plaintiff avers that service pursuant to Rule 4(f)(3) is necessary because service under the Hague Convention would take between six months and three years to complete. Dkt. 9 at 11. Though Plaintiff's avers that counsel researched the Hague Convention requirements and timeframe, this claim is unsupported by any declaration or data. The mere "fact that alternate service will be faster does not, by itself, justify service by alternate means." Celgard, LLC v. Shenzhen Senior Technology Material Co. Ltd., 2019 WL 5550039, at *3 (N.D. Cal. Oct. 28, 2019) (citing Keck v. Alibaba.com, Inc., 330 F.R.D. 255, 259 (N.D. Cal. 2018)). Though "in cases of urgency, Rule 4(f)(3) may allow the district court to order a special method of service, even if other methods of service remain incomplete or unattempted," that does not appear to be the case here. Rio Properties, Inc., 284 F.3d at 1015. Plaintiff suggests that "it faces a threat of immediate, irreparable harm if it cannot obtain preliminary relief in this action." Dkt. 9 at 11. As support for this statement, Plaintiff merely quotes a 2017 journal article that broadly opines on the harms that stem from patent infringement. Id. at 12. Plaintiff gives no particularized reason for its assertion that it faces immediate, irreparable harm, and the Court cannot find any on the record before it. Plaintiff has not demonstrated that the particularities and necessities of this case require alternate service of process. See Rio Properties, Inc., 284 F.3d at 1014.
Furthermore, and significantly, Plaintiff has failed to show that its proposed alternate means of service—serving the California Secretary of State—comports with due process. Rio Properties, Inc., 284 F.3d at 1016. "To meet this requirement, the method of service crafted by the district court must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. at 1016-17 (citation and internal quotation marks omitted). Here, Plaintiff has failed to offer a single fact that would support a conclusion that Defendant would be apprised of this action by service on the California Secretary of State. Instead Plaintiff states that "[s]ervice upon the Secretary of State is a common form of service," citing broadly to the case Knit With v. Knitting Fever, Inc. Dkt. 9 at 12. Plaintiff does not cite to any specific docket number or order it believes stands for that proposition, nor does Plaintiff offer any quotations or analysis to further bolster its statement. Plaintiff also avers that it "is confident that service upon Secretary of State is reasonably calculated to apprise the Chinese Defendant Fuzhou of the pendency of the action and afford them an opportunity to present their objections because of their business contacts with the residents of California." Id. Again, Plaintiff offers no factual support for this statement. Plaintiff further states that because Defendant "has (1) conducted a bad act in California, (2) deliberately avoid (sic) to be contacted, and (3) without having designated a person in California to receive papers," citing to the Texas Civil Code, "serving the Secretary of State is the "equivalent" of serving the Defendant." Id. However, the Texas Civil Code is neither persuasive nor binding on this Court. //// //// //// //// //// //// //// //// //// ////
For the reasons set forth above, the Court finds that Plaintiff has not sufficiently shown why it should be permitted to serve Defendant through service on the California Secretary of State or that such service would comport with the requirements of due process. The Court notes that Plaintiff avers it sent a notice of infringement to Defendant in China and Plaintiff attaches both the notice and a purported receipt of mailing to its motion. Dkt. 9 at 8; Dkt. 9-24, Dkt. 9-25. "[T]rial courts have authorized a wide variety of alternative methods of service including publication, ordinary mail, mail to the defendant's last known address, delivery to the defendant's attorney, telex and most recently, email." Rio Properties, Inc., 284 F.3d at 1016 (collecting cases). Plaintiff's motion is DENIED without prejudice.
The Court's copy of Dkt. 9-25 (Exhibit F) is illegible.
SO ORDERED. Dated: August 12, 2020
/s/_________
SUSAN VAN KEULEN
United States Magistrate Judge