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finding that plaintiff was not required to first exhaust Rule 4(f) and 4(f) methods because Rule 4(f) is "neither a last resort nor extraordinary relief [but rather] merely one means among several" (quoting Rio, 284 F.3d at 1015)
Summary of this case from Slay v. IB Travelin, Inc.Opinion
For Lexmark International, Inc., Plaintiff: P Douglas Barr, LEAD ATTORNEY, Stoll, Keenon & Park, Lexington, KY; Anthony J. Phelps, Steven B Loy, PRO HAC VICE, Stoll Keenon Ogden PLLC, Lexington, KY; Audra Carol Eidem Heinze, Jason Shull, Matthew P Becker, Timothy C Meece, V Bryan Medlock, PRO HAC VICE, Banner & Witcoff, Ltd., Chicago, IL; William J Hunter, Jr., PRO HAC VICE, Stoll Keenon Ogden PLLC, Louisville, KY.
For Quality Cartridges, Inc., Defendant: David Graham Kern, LEAD ATTORNEY, Roetzel & Andress, LPA, Cincinnati, OH; Gary Hnath, Jeffrey C Lowe, PRO HAC VICE, Mayer Brown LLP, Washington, DC.
For John Does, 1-20, Defendant: Jon Hokanson, Thomas S Kidde, PRO HAC VICE, Lewis Brisbois Bisgaard & Smith, LLP, Los Angeles, CA.
For Blue Trading LLC, Eco Service China Ltd., Defendants: Glenn Dean Bellamy, LEAD ATTORNEY, Wood, Herron & Evans, LLP, Cincinnati, OH; Andre A Gibson, PRO HAC VICE, Andre Gibson, Chartered, North Miami Beach, FL.
Core Servicios Informaticos S.I., Defendant, Pro se.
For Impression Products, Inc., Defendant: Crystal L Maluchnik, LEAD ATTORNEY, George H Carr, Janik L.L.P, Cleveland, OH; Edward F O'Connor, PRO HAC VICE, The Eclipse Group, LLP, Irvine, CA.
For Interseroh Product Cycle GmbH, Onlinetechstores.com, Inc., Tech Optics, Inc., OW Supplies Corp., Defendants: David Graham Kern, LEAD ATTORNEY, Roetzel & Andress, LPA, Cincinnati, OH.
For LD Products, Inc., Defendant: Karl Stephen Kronenberger, LEAD ATTORNEY, Kronenberger Rosenfeld, LLP, San Francisco, CA; Marc N. Bernstein, Will Barnett Fitton, The Business Litigation Group, P.C., San Francisco, CA.
For N & L Global Co., Defendant: David Graham Kern, LEAD ATTORNEY, Roetzel & Andress, LPA, Cincinnati, OH; Andrew B. Chen, Saeid Mirsafian, Sang N. Dang, Blue Capital Law Firm, P.C., Costa Mesa, CA.
For TonerLand, Defendant: Michael P Foley, LEAD ATTORNEY, Rendigs, Fry, Kiely & Dennis, Cincinnati, OH.
For Green Project, Inc., Counter Claimant: Lena Nadine Bacani, Thomas Tak-Wah Chan, PRO HAC VICE, Fox Rothschild LLP, Los Angeles, CA; Michael P Foley, Rendigs, Fry, Kiely & Dennis, Cincinnati, OH.
For Lexmark International, Inc., Counter Defendant: P Douglas Barr, LEAD ATTORNEY, Stoll, Keenon & Park, Lexington, KY; Anthony J. Phelps, Steven B Loy, PRO HAC VICE, Stoll Keenon Ogden PLLC, Lexington, KY; Audra Carol Eidem Heinze, Jason Shull, Timothy C Meece, PRO HAC VICE, Banner & Witcoff, Ltd, Chicago, IL; Matthew P Becker, V Bryan Medlock, PRO HAC VICE, Banner & Witcoff, Ltd., Chicago, IL; William J Hunter, Jr., PRO HAC VICE, Stoll Keenon Ogden PLLC, Louisville, KY.
For N & L Global Co., Onlinetechstores.com, Inc., OW Supplies Corp., Counter Claimants: David Graham Kern, LEAD ATTORNEY, Roetzel & Andress, LPA, Cincinnati, OH; Andrew B. Chen, Saeid Mirsafian, Sang N. Dang, Blue Capital Law Firm, P.C., Costa Mesa, CA.
OPINION OPINION AND ORDER
Michael R. Barrett, United States District Judge.
This matter is before the Court on Plaintiff Lexmark International, Inc.'s Motion for Permission to serve Zhuhai Aicon Image Co. and Ero Service Sp. z.o.o. with Summons and the Second Amended Complaint via email. (Doc. 477). As those Foreign Defendants have not appeared in the matter, no response in opposition has been filed on their behalf.
I. BACKGROUND
With respect to the First Amended Complaint, Plaintiff sought leave to serve other foreign defendants by email only. Several of those foreign defendants were companies located in China. None were companies located in Poland. Although the Court initially denied Plaintiff's request for leave to serve those foreign defendants in China by email only for failure to demonstrate that the proposed means of service comported with due process, it later permitted such service after receiving assurances that the proposed means was reasonably calculated to reach the foreign defendant.
On November 1, 2013, Plaintiff filed its Second Amended Complaint in which it added new defendants. The new defendants included Defendants Zhuhai Aicon Image Co., which appears to be an entity located in China, and Eco Service Sp. z.o.o., which appears to be an entity located in Poland. Plaintiff now seeks to serve those two foreign defendants by email only.
II. ANALYSIS
Federal Rule of Civil Procedure 4(h) governs international service of process on foreign businesses. Specifically, Rule 4(h)(2) authorizes service of process on a foreign business in the same " manner prescribed by Rule 4(f) for serving an individual, except personal delivery . . . ." Fed.R.Civ.P. 4(h)(2).
Federal Rule of Civil Procedure 4(f) provides three methods for service. First, Rule 4(f)(1) allows for service by " any internationally agreed means . . . that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents." Fed.R.Civ.P. 4(f)(1). Second, Rule 4(f)(2) provides that " if there is no internationally agreed means, or if an international agreement allows but does not specify other means," then service may be effectuated in accordance with the laws of the foreign country, as directed by the foreign authority in response to a letter rogatory or letter of request, or by using any form of mail that the clerk addresses and that requires a signed receipt, unless prohibited by the foreign country's laws. Fed.R.Civ.P. 4(f)(2). Third, Rule 4(f)(3) permits service by " other means not prohibited by international agreement, as the court orders." Fed.R.Civ.P. 4(f)(3).
Here, Plaintiff appears to rely, as it did in its prior motions for alternative service, on Rule 4(f)(3) for service on the foreign defendants. Based upon the plain language of Rule 4(f)(3), the only two requirements for service under that Rule are that it must be (1) directed by the court, and (2) not prohibited by international agreement. See Popular Enters., LLC v. Webcom Media Grp., Inc., 225 F.R.D. 560, 561 (E.D. Tenn. 2004). Notably, courts have consistently found that there is not a hierarchy among the subsections of Rule 4(f). Studio A. Entm't., Inc. v. Active Distributors, Inc., No. 1:06-cv-2496, at *6 (N.D. Ohio Jan. 15, 2008); see also Flava Works, Inc. v. Does 1-26, No. 12C5844, at *17 (N.D.Ill. Apr. 19, 2013); Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). Rule 4(f)(3) is " neither a 'last resort' nor extraordinary relief.' It is merely one means among several which enables service of process on an international defendant." Rio Props., Inc., 284 F.3d at 1015. As such, a plaintiff is not required to first exhaust the methods contemplated by Rule 4(f)(1) and (2) before petitioning the Court for permission to use alternative means under Rule 4(f)(3). Studio A Entm't; see also Flava Works, Inc., at *17; Rio Props., Inc., 284 F.3d at 1015.
However, even if service is permitted by a particular method, the Court must determine whether the chosen method comports with constitutional notions of due process, namely that the service of process be " reasonably calculated, under all the circumstances, to apprize interested parties of the pendency of the action and afford them an opportunity to present their objections." Studio A. Entm't, at *8.
The Court also must determine whether the facts and circumstances of the case warrant the exercise of its discretion to order alternative service. Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nig., 265 F.R.D. 106, 115 (S.D.N.Y. 2010) (" 'The decision whether to allow alternative methods of serving process under Rule 4(f)(3) is committed to the sound discretion of the district court.'" ) (quoting RSM Prod. Corp. v. Fridman, No. 06 Civ 11512, (S.D.N.Y. May 24, 2007)); see also In re GLG Life Tech Corp. Sec. Litig., 287 F.R.D. 262, 265 (S.D.N.Y. 2012). Some courts, prior to authorizing service under Rule 4(f)(3), have required a showing that the plaintiff has reasonably attempted to effectuate service on the defendant and that the circumstances are such that the court's intervention is necessary. See, e.g., In re GLG Life Tech. Corp. Sec. Litig., 287 F.R.D. at 265-66; Williams v. Adver. Sex LLC, 231 F.R.D. 483, 486 (N.D. W.Va. 2005); Rio Props., Inc., 284 F.3d at 1016). Further, one district court in the Sixth Circuit has stated that " even if other methods of obtaining service of process are technically allowed, principles of comity encourage the court to insist, as a matter of discretion, that a plaintiff attempt to follow foreign law in its efforts to secure service of process upon defendant." C& F Sys., LLC v. Limpimax, S.A., No. 1:09cv858. The Advisory Committee Notes to Rule 4 provide further guidance as to when alternative service may be appropriate:
The Hague Convention, for example, authorizes special forms of service in cases of urgency if conventional methods will not permit service within the time required by the circumstances. Other circumstances that might justify the use of additional methods include the failure of the foreign county's Central Authority to effect service within the six-month period provided by the Convention, or the refusal of the Central Authority to serve a complaint seeking punitive damages or to enforce the antitrust laws of the United States. In such cases, the court may direct a special method of service not explicitly authorized by international agreement if not prohibited by the agreement. Inasmuch as our Constitution requires that reasonable notice be given, an earnest effort should be made to devise a method of communication that is consistent with due process and minimizes offense to foreign law.
Fed. R. Civ. P. 4, Advisory Committee Note to Subdivision (f)(3).
Considering those standards, the Court must evaluate whether service by email only is appropriate as to Zhuhai Aicon Image Co. in China and Eco Service Sp. z.o.o. in Poland. Both China and Poland are signatories to the Hague Convention. Convention done at the Hague Nov. 15, 1965, art. 10(a), 20 U.S.T. 361, 658 U.N.T.S. 163, C.T.S. 1989/2. Both China and Poland object to Article 10 of the Hague Convention under which service by postal channels would be permissible.
Although Plaintiff has entirely failed to provide any information as to whether Poland is a signatory to an international treaty, the Court recognizes that Poland indeed is a signatory to the Hague Convention.
Various courts have agreed that service by email is not prohibited by the Hague Convention. See Williams-Sonoma Inc. v. Friendfinder, Inc., No. C 06-06572, at *4-5 (N.D. Cal. Apr. 17, 2007); see also Facebook, Inc. v. Banana Ads, LLC, No. C-11-3619, at *6-7 (N.D. Cal. Mar. 27, 2012) (citing cases where court held that service by email did not violate the Hague Convention). Email service has been approved even where, as here, the country objects to Article 10 of the Hague Convention. See Fed. Trade Comm'n v. PCCare247, Inc., No. 12 Civ. 7189, at *11 (S.D.N.Y. Mar. 7, 2013) (citing Gurung v. Malhotra, 279 F.R.D. 215, 219 (S.D.N.Y. 2011); Philip Morris USA Inc. v. Veles Ltd., No. Civ. 2988 (GBD), (S.D.N.Y. Mar. 12, 2007)); see also Facebook, Inc., at *6-7 (citing cases where court held that service by email did not violate the Hague Convention). As such, a court may order service by email, where appropriate.
Plaintiff's motion provides the Court with sufficient information from which the Court can determine that the requested alternative service by email is reasonably calculated to reach those Defendants. Zhuhai Aicon Image Co. in China and Eco Service Sp. z.o.o. are business entities with websites on which they provide email addresses where they may be contacted. Plaintiff also has demonstrated that it has verified that each of the email addresses at which it seeks to serve those Defendants is valid, and that communication has occurred with a representative of the respective Defendant at those email addresses.
Plaintiff also has shown that the circumstances of the case warrant alternative service. This case has been pending for approximately three years, and the Court is well aware of the difficulties encountered by Plaintiff attempting to locate all of the Defendants in this matter. Plaintiff has demonstrated that service on the Chinese entity as well as the Polish entity could be significantly delayed if formal service pursuant to the Hague Convention is required. Plaintiff also has demonstrated in its prior motions that other business entities have evaded enforcement efforts by effectively disappearing such that any further delay may prejudice Plaintiff's ability to obtain relief.
Accordingly, the Court finds that this case warrants the exercise of its discretion to order alternative service under Rule 4(f)(3) on the two foreign defendants that are the subject of Plaintiff's motion. Plaintiff's Motion (Doc. 477) therefore is GRANTED, and Plaintiff is authorized to serve the following Defendants with the Summons and Second Amended Complaint as set forth below:
Defendant
Alternative Means of Service
Zhuhai Aicon Image Co.
Via e-mail to:
1. promotion@iaicon.com
2. bizl@iaicon.com
Eco Service Sp. z.o.o.
Via e-mail to:
rozel@ecos.com.pl
IT IS SO ORDERED.