Smart Study Co., LTD. v. Acuteye-US, et al., No. 1:2021cv05860 - Document 100 (S.D.N.Y. 2022)

Court Description: MEMORANDUM OPINION AND ORDER: It does not escape the Court that many requests by plaintiffs to serve a defendant in China by email are unopposed, as was the case here and in Sulzer. Indeed, Plaintiff's counsel's firm has filed approxim ately forty such requests in this district in 2022 alone, the majority of which appear to be wholly unopposed. See, e.g., Kelly Toys Holdings, Llc V. Children 777 Store et al., Case No. 1:22-cv-1857, Dkt No. 17 at 1719 (requesting to serve defend ants in China by email); The Pinkfong Company Inc. v. 7 Day Store et al., Case No. 1:22-cv-4133, Dkt. No. 17 at 1719 (same, using identical language); Mattel Inc. v. Agogo Store et al., Case No. 1:22-cv-2388, Dkt. No. 11 at 1719 (same, again using identical language). Thus, courts are unlikely to be alerted to authority that casts doubt on the propriety of their request for email service. In this case, it was not until YLILLY's reply brief shed light on the issue that the Court had an y notice that email service might not be permissible on defendants located in China. The Court acknowledges that the inability to serve defendants in China by email could present obstacles to bringing copyright and trademark enforcement actions ag ainst defendants who operate online storefronts from that country. The Court understands that service via the procedures outlined in the Hague Convention can be lengthy, and that there is little ability to monitor the progress of a request for ser vice to the Ministry of Justice. See In re Bibox Grp. Holdings Ltd. Sec. Litig., No. 20CV2807(DLC), 2020 WL 4586819, at *3 (S.D.N.Y. Aug. 10, 2020) commenting that service through the procedures in the Hague Convention poses the risk of significa nt delay and that plaintiffs would be unable to check the status of their request). Moreover, the Court agrees that the goal of prosecuting copyright and trademark infringement abroad is a noble one. However, the Court may not ignore the text of R ule 4(f), the Hague Convention, and Chinese law in order to make service more efficient for Plaintiff. Nor may the Court ignore the implications of the Supreme Court's decisions in Water Splash and Schlunk. Rather, the Court is bound to those precedential and textual strictures. Indeed, [t]hose rules are mandatory, and... 'the systemic comity interests embodied in the Service Convention' shouldn't be sacrificed in the name of 'concrete case management concerns.' ; See Facebook, 480 F. Supp. 3d at 987 (quoting Maggie Gardner, Parochial Procedure, 69 Stan. L. Rev. 941, 1000 (2017) (footnote omitted)). For the reasons stated, Plaintiff's motion for default judgment is denied. (Signed by Judge Gregory H. Woods on 7/21/2022) (rro)