Rubie's Costume Company, Inc. v. Yiwu Hua Hao Toys Co., Ltd. et al, No. 2:2018cv01530 - Document 22 (W.D. Wash. 2019)
Court Description: ORDER granting in part and denying in part Plaintiff's 20 MOTION for Alternative Service. Signed by Judge Richard A. Jones.(MW)
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< 11 except personal delivery.” Rule 4(f) authorizes several methods for service of process 12 including, an “internationally agreed means of service,” or, if there is no “internationally 13 agreed means,” a method that is reasonably calculated to give notice. Fed. R. Civ. P. 14 4(f). III. 15 DISCUSSION 16 Under Fed. R. Civ. P. 4(f)(3), courts have discretion to allow service by alternative 17 means provided the court’s method of service comports with constitutional notions of due 18 process and is not prohibited by international agreement. Rio Properties, Inc. v. Rio Int'l 19 Interlink, 284 F.3d 1007, 1016 (9th Cir.2002). A method of service comports with due 20 process if it is “reasonably calculated, under all the circumstances, to apprise interested 21 parties of the pendency of the action and afford them an opportunity to present their 22 objections.” Rio Properties, Inc., 284 F.3d at 1016, 1017 (quoting Mullane v. Cent. 23 Hanover Bank & Trust, 339 U.S. 306, 314 (1950)). Courts have authorized numerous 24 methods of alternative service under Rule 4(f)(3), including service by publication, mail, 25 and e-mail. Id. at 1016 (citations omitted). Parties are not required to attempt service by 26 other methods before petitioning the court for alternative service of process, instead it is 27 within the discretion of the district court to determine “when the particularities and 28 necessities of a given case require alternate service of process under rule 4(f)(3).” Id. at ORDER- 3 1 2 1016. Courts consider a variety of factors when evaluating whether to grant relief under 3 Rule 4(f)(3) including whether the plaintiff identified a physical address for the 4 defendant, whether the defendant was evading service of process, and whether the 5 plaintiff had previously been in contact with the defendant. See e.g. Rio Properties, Inc. 6 v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir.2002) (authorizing alternative service where 7 the plaintiff made multiple good faith yet unsuccessful efforts to serve the defendant and 8 the defendant was “striving to evade service of process.”); Liberty Media Holdings, LLC 9 v. Vinigay.com, 2011 WL 810250 (D. Ariz. Mar. 3, 2011) (allowing alternative service by 10 e-mail where the plaintiff was unable to identify a physical address for the defendant and 11 the plaintiff had previously communicated with the defendant by e-mail); Lyman Morse 12 Boatbuilding Co. v. Lee, 2011 WL 52509 (D. Me. Jan. 6, 2011) (allowing alternative 13 service by e-mail where the plaintiff had previously attempted to serve the defendant by 14 mail, the plaintiff was in e-mail communication with the defendant, and the defendant 15 had instructed his attorney not to accept service on his behalf). 16 The advisory committee notes to Rule 4 also provide several examples of situations 17 that might merit alternative means of service such as cases of urgency or the failure of a 18 country’s Central Authority to effect service within the six-month period provided by the 19 Hague Convention. See Fed.R.Civ.P. 4 Advisory Committee’s Notes (1993 Amendment, 20 subdivision (f)). The advisory notes caution courts to select a method of service that is 21 “consistent with due process and minimizes offense to foreign law.” Id. 22 As an initial matter, the Court notes that China is a signatory to the Hague 23 Convention on the Service Abroad of Judicial and Extrajudicial Documents (“Hague 24 Convention”). See Contracting Parties, Hague Conference on Private International Law, 25 https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Nov. 26 22, 2019). The Hague Convention requires signatory countries to establish a Central 27 Authority to receive requests for service of documents from other countries and to serve 28 those documents by methods compatible with the internal laws of the receiving state. See ORDER- 4 1 2 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698–99 (1988). Service through a country’s Central Authority is the principal means of service 3 under the Hague Convention. Article X of the Convention preserves the ability of parties 4 to effect service through means other than a recipient-nation’s Central Authority as long 5 as the recipient-nation has not objected to the specific alternative means of service used. 6 See Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, 7 art. 10, Feb. 10, 1969, 20 U.S.T. 361. In signing the Convention, China expressly 8 rejected service through means enumerated in Article X, including service through postal 9 channels and through its judicial officers. See Contracting Parties, Hague Conference on 10 Private International Law, https://www.hcch.net/en/instruments/conventions/status- 11 table/?cid=17 (last visited Nov. 22, 2019). 12 Despite China’s objection to Article X, numerous courts have held that Article X 13 does not prohibit service by electronic communication. See, e.g., Microsoft Corp. v. 14 Goldah.com Network Tech. Co., Ltd., No. 17-CV-02896-LHK, 2017 WL 4536417, at *4 15 (N.D. Cal., Oct. 11, 2017) (holding service by e-mail did not violate Article X); Microsoft 16 Corp. v. Gameest Int’l Network Sales Co., No. 17-CV-02883-LHK, 2017 WL 4517103, 17 at *2-*3 (authorizing service by email despite China’s objection to Article X); Fourte 18 Int’l Ltd. BVI v. Pin Shine Indus. Co., No. 18-cv-00297-BAS-BGS, 2019 WL 246562, at 19 *2-*3 (S.D. Cal., Jan. 17, 2019) (rejecting argument that China’s objection to service by 20 postal channel precluded electronic service); Williams-Sonoma, Inc. v. Friendfinder, Inc., 21 No. C 06-06572 JSW, 2007 WL 1140639, at *2 (N.D. Cal., Apr. 17, 2017) 22 (distinguishing email service from postal mail and concluding that service by email to 23 parties located in countries that have objected to Article X was permissible). 24 In addition, within the Ninth Circuit, multiple courts have allowed alternative 25 service by electronic communication to defendants located in China. See MultiFab, Inc. 26 v. ArlanaGreen.com, No. 2:15-CV-0066-SMJ, 2015 WL 12880504, at *3−*4 (E.D. 27 Wash., Mar. 13, 2015) (allowing service via e-mail on defendant located outside the 28 United States); Juicero, Inc. v. Itaste Co., No. 17-cv-01921-BLF, 2017 WL 3996196, at ORDER- 5 1 *3 (N.D. Cal., June 5, 2017) (authorizing e-mail service and service through Facebook 2 account on Chinese defendants in infringement case); Chanel, Inc. v. Lin, No. C-09- 3 04996 JCS, 2010 WL 2557503, at *3 n.3 (N.D. Cal., May 7, 2010), report and 4 recommendation adopted, No. C-09-04996 SI, 2010 WL 2557561 (N.D. Cal., June 21, 5 2010) (authorizing alternative service of process on Chinese defendants via e-mail 6 pursuant to Fed. R. Civ. P. 4(f)(3) in trademark action); Gucci Am., Inc. v. Wang 7 Huowing, No. C-0905969 JCS, 2011 WL 31191, at *3 (N.D. Cal., Jan. 3, 2011), report 8 and recommendation adopted, No. C-09-05969 CRB, 2011 WL 30972 (N.D. Cal., Jan. 5, 9 2011) (same); Magpul Indus. Corp. v. Zejun, No. C 14-01556 JSW, 2014 WL 7213344, 10 at *2 (N.D. Cal., Dec. 16, 2014) (complaint served on Chinese counterfeiting defendant 11 via e-mail); Keck v. Alibaba.com, Inc., No. 17-cv-05672-BLF, 2018 WL 3632160, at 12 *3−*4 (N.D. Cal., July 31, 2018) (authorizing service of process through AliExpress.com 13 online messaging system). As a result, the Court finds that Plaintiff’s proposed methods 14 of alternative service are not expressly prohibited by international agreement. 15 Even if alternative service is permitted by Rule 4(f)(3), however, the Court must 16 still consider whether the proposed method of service comports with due process. Rio 17 Props., 284 F.3d at 1016. Here, the Court finds that service by e-mail and through 18 Defendants’ electronic storefronts is permitted as to some Defendants given the 19 circumstances of this case, specifically, where Plaintiff has been unable to ascertain 20 physical addresses for service after a reasonable effort or where there is evidence 21 defendants are attempting to evade service. See Dkt. # 20-2 at ¶¶ 7, 8, 12, 13, and 16. 22 Accordingly, Plaintiff’s Motion is GRANTED as to Defendants Yiwu Hua Hao Toys 23 Co., Ltd., Li Chen, Ofer Mandler, Shanju Lei, and James Jackson. 24 For those remaining defendants where Plaintiff has identified physical addresses in 25 China, the Court DENIES Plaintiff’s Motion. From the record, it does not appear that 26 Rubie’s has attempted service on these defendants at all. In addition, Plaintiff has failed 27 to demonstrate that these defendants are elusive or otherwise striving to evade service of 28 process. Rio Properties, at 1014 (plaintiff must demonstrate that the facts and ORDER- 6 1 circumstances of the present case necessitated the district court’s intervention for 2 alternative service of process). 3 IV. CONCLUSION 4 For the foregoing reasons, the Court GRANTS in part and DENIES in part 5 Plaintiff’s Motion for an Order Directing Alternative Service of Process under Rule 6 4(f)(3) of the Federal Rules of Civil Procedure. Dkt. # 20. Plaintiff has leave under 7 Federal Rule of Civil Procedure 4(f)(3) to serve Defendants Yiwu Hua Hao Toys Co., 8 Ltd., Li Chen, Ofer Mandler, Shanju Lei, and James Jackson with the First Amended 9 Complaint, the Summons, and this Order by the following unique email addresses and 10 11 12 13 14 Amazon Seller Accounts as indicated below: Defendant Yiwu Hua Hao Toys Co., Ltd. Li Chen 15 16 Ofer Mandler 17 Shanju Lei 18 James Jackson 19 20 21 22 Amazon.com Seller Account “Yiwu Huahao Toys Co. Ltd.” (A28HXIHWFH6GG1) “Hugallur-US” (A1BVUFNRB02KXK) “CommercialProducts” (A4CK52F84GSEF) “iFigure” (A30YGBPACVGCY9) “JM Goodies” (A1NYKB7FGC8DNW) Email Address edwin@huahaotoys.net ladykeramz@yahoo.com mike.homeproducts@gmail.com figure@yeah.net support@taxmonkey.com Plaintiff has 14 days from the date of this Order to serve the Defendants in accordance with this Order. DATED this 25th day of November, 2019. 23 A 24 25 The Honorable Richard A. Jones United States District Judge 26 27 28 ORDER- 7
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