United States:
Judge Albright Weighs Online Presence In Determining Whether Plaintiff Can Serve Process Electronically
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In Sinox Co. v. YiFeng Manufacturing Co. and
Shenzhen Yuandaoyuan Indus. Co., Sinox Co. (Sinox) sought
the court’s permission to effect alternative service via
email under Rule 4(f)(3). Judge Albright
granted-in-part-as-modified and denied-in-part Sinox’s motion
for leave to effect alternative service on defendants. He allowed
electronic service upon Shenzhen Yuandaoyuan Indus. Co. (SYIC), but
not YiFeng Manufacturing Co. (YiFeng), with the difference arising
from each defendant’s online presence, or lack thereof.
Under Federal Rule of Civil Procedure 4(f)(3), courts enjoy
broad discretion to authorize service on foreign corporations by
means that are not prohibited by international agreement. Judge
Albright found that no international agreement prohibited
electronic service on the defendants, which are Chinese companies.
As a signatory to the Hague Convention, China has objected to
service that is effectuated via postal channels under Article 10(a)
of the Hague Convention. Although there is differing case law as to
whether Article 10(a) includes electronic service, Judge Albright
ruled that an objection to postal service does not also constitute
an objection to electronic service.
Judge Albright authorized alternative service under Rule 4(f)(3)
because Sinox attempted service through multiple methods, including
traditional means. For instance, Sinox attempted postal service,
Hague service, and electronic service. Though noting that
alternative service may be considered without any attempt at
traditional service, Judge Albright acknowledged that courts
generally prefer an attempt at service in compliance with the Hague
Convention before granting alternative service. He further noted
that comity principles counsel in favor of at least attempting
service in accordance with foreign law.
In authorizing alternative service, Judge Albright was
motivated, at least in part, by the delay Hague service has
presented to Sinox. As of the date of the order, Sinox’s
Hague service has been outstanding for over three months, with
further delays likely due to the coronavirus and geopolitical
issues. Relying on Document Operations LLC v. AOS Legal Techs.,
Inc., Judge Albright observed that alternative service can be
warranted when time considerations render Hague service
inappropriate. No. 4:20-CV-1532, 2020 U.S. Dist. LEXIS 211307, at
*8 (S.D. Tex. Nov. 12, 2020). Noting that several months of delay
associated with Hague service would permit the accused infringing
products to continue to enter the market and delay the resolution
of Sinox’s patent rights, Judge Albright determined that
alternative service is appropriate.
But even though Judge Albright determined that alternative
service is justified under Rule 4(f)(3), it must still satisfy due
process. Judge Albright ruled that Sinox’s proposed
electronic service upon SYIC satisfies due process because SYIC
conducts online business on both Amazon and its own website.
Accordingly, Judge Albright found that service via SYIC’s
email address is “reasonably calculated to apprise SYIC of
this Action.” Judge Albright further noted that emails Sinox
had previously sent to SYIC actually notified SYIC of the action,
and Sinox has even communicated with a SYIC manager about the
action via WeChat. On that basis, the court ordered that Sinox may
serve SYIC using email and Amazon’s messaging center if Sinox
also attempts service through the manager’s WeChat and
translates process into Chinese. Because SYIC has conducted online
business through these channels, due process is satisfied by
service through the same channels.
However, Judge Albright ruled that email is not reasonably
calculated to provide notice to the other defendant, YiFeng. Unlike
SYIC, Sinox’s allegations rely upon YiFeng’s conduct at
trade shows, not online conduct. Moreover, Sinox has not shown that
YiFeng has responded to any of Sinox’s emails or that it is
actually aware of the litigation. Accordingly, Judge Albright
denied Sinox’s request to effectuate alternative service upon
YiFeng.
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