Centre Way Company Limited v. Fuzhou Puhua Minghui Trading Co. Ltd. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CENTRE WAY COMPANY LIMITED, Case No. 20-cv-01377-SVK 8 Plaintiff, ORDER DENYING PLAINTIFF'S 9 v. MOTION FOR SUBSTITUTED SERVICE 10 FUZHOU PUHUA MINGHUI TRADING CO. LTD., Re: Dkt. No. 9 11 Defendant. 12 13 Plaintiff Centre Way Company Limited filed the instant motion1 asking this Court to order 14 substituted service pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure. Dkt. 9. 15 Specifically, Plaintiff asks this Court to order substituted service on Defendant Fuzhou Puhua 16 Minghui Trading Co. Ltd., a Chinese company, by way of hand delivering documents to the 17 California Secretary of State’s office in Sacramento. Id. 18 Rules 4(f) and 4(h)(2) of the Federal Rules of Civil Procedure govern service of process on 19 individuals and corporations outside the United States. Rule 4(h)(2) provides for service on a 20 corporation, partnership, or association “in any manner prescribed by Rule 4(f) . . . .” 21 Fed. R. Civ. P. 4(h)(2). Rule 4(f)(1) authorizes service “by any internationally agreed means of 22 service that is reasonably calculated to give notice,” including through the Hague Convention. 23 Fed. R. Civ. P. 4(f)(1). Alternatively, Rule 4(f)(3) allows service “by other means not prohibited 24 by international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). Rule 4(f)(3) does not 25 “create a hierarchy of preferred methods of service of process,” and “service of process under Rule 26 4(f)(3) is neither a last resort nor extraordinary relief.” Rio Properties, Inc. v. Rio Int’l Interlink, 27 1 284 F.3d 1007, 1014-15 (9th Cir. 2002) (internal quotations and citation omitted). Rather, the rule 2 “is merely one means among several which enables service of process on an international 3 defendant.” Id. at 1015. Rule 4(f)(3) simply requires that substituted service: (1) is directed by 4 the court; (2) is not prohibited by international agreement; and (3) comports with due process. Id. 5 at 1014-1016. “[T]he task of determining when the particularities and necessities of a given case 6 require alternate service of process under Rule 4(f)(3)” is left to the sound discretion of the district 7 court. Id. at 1016. 8 Plaintiff avers that Defendant is located in China. Dkt. 9 at 2, 8. China is a signatory to 9 the Hague Convention, and Defendant could be served in that manner or pursuant to Rule 4(f)(3). 10 Here, Plaintiff seeks to serve Defendant pursuant to Rule 4(f)(3). Plaintiff avers that service 11 pursuant to Rule 4(f)(3) is necessary because service under the Hague Convention would take 12 between six months and three years to complete. Dkt. 9 at 11. Though Plaintiff’s avers that 13 counsel researched the Hague Convention requirements and timeframe, this claim is unsupported 14 by any declaration or data. The mere “fact that alternate service will be faster does not, by itself, 15 justify service by alternate means.” Celgard, LLC v. Shenzhen Senior Technology Material Co. 16 Ltd., 2019 WL 5550039, at *3 (N.D. Cal. Oct. 28, 2019) (citing Keck v. Alibaba.com, Inc., 330 17 F.R.D. 255, 259 (N.D. Cal. 2018)). Though “in cases of urgency, Rule 4(f)(3) may allow the 18 district court to order a special method of service, even if other methods of service remain 19 incomplete or unattempted,” that does not appear to be the case here. Rio Properties, Inc., 284 20 F.3d at 1015. Plaintiff suggests that “it faces a threat of immediate, irreparable harm if it cannot 21 obtain preliminary relief in this action.” Dkt. 9 at 11. As support for this statement, Plaintiff 22 merely quotes a 2017 journal article that broadly opines on the harms that stem from patent 23 infringement. Id. at 12. Plaintiff gives no particularized reason for its assertion that it faces 24 immediate, irreparable harm, and the Court cannot find any on the record before it. Plaintiff has 25 not demonstrated that the particularities and necessities of this case require alternate service of 26 process. See Rio Properties, Inc., 284 F.3d at 1014. 27 Furthermore, and significantly, Plaintiff has failed to show that its proposed alternate 1 Properties, Inc., 284 F.3d at 1016. “To meet this requirement, the method of service crafted by 2 the district court must be reasonably calculated, under all the circumstances, to apprise interested 3 parties of the pendency of the action and afford them an opportunity to present their objections.” 4 Id. at 1016-17 (citation and internal quotation marks omitted). Here, Plaintiff has failed to offer a 5 single fact that would support a conclusion that Defendant would be apprised of this action by 6 service on the California Secretary of State. Instead Plaintiff states that “[s]ervice upon the 7 Secretary of State is a common form of service,” citing broadly to the case Knit With v. Knitting 8 Fever, Inc. Dkt. 9 at 12. Plaintiff does not cite to any specific docket number or order it believes 9 stands for that proposition, nor does Plaintiff offer any quotations or analysis to further bolster its 10 statement. Plaintiff also avers that it “is confident that service upon Secretary of State is 11 reasonably calculated to apprise the Chinese Defendant Fuzhou of the pendency of the action and 12 afford them an opportunity to present their objections because of their business contacts with the 13 residents of California.” Id. Again, Plaintiff offers no factual support for this statement. Plaintiff 14 further states that because Defendant “has (1) conducted a bad act in California, (2) deliberately 15 avoid (sic) to be contacted, and (3) without having designated a person in California to receive 16 papers,” citing to the Texas Civil Code, “serving the Secretary of State is the “equivalent” of 17 serving the Defendant.” Id. However, the Texas Civil Code is neither persuasive nor binding on 18 this Court. 19 //// 20 //// 21 //// 22 //// 23 //// 24 //// 25 //// 26 //// 27 //// 1 For the reasons set forth above, the Court finds that Plaintiff has not sufficiently shown 2 || why it should be permitted to serve Defendant through service on the California Secretary of State 3 or that such service would comport with the requirements of due process. The Court notes that 4 || Plaintiff avers it sent a notice of infringement to Defendant in China and Plaintiff attaches both the 5 notice and a purported receipt of mailing to its motion. Dkt. 9 at 8; Dkt. 9-24, Dkt. 9-257. “[T]rial 6 || courts have authorized a wide variety of alternative methods of service including publication, 7 || ordinary mail, mail to the defendant’s last known address, delivery to the defendant’s attorney, 8 || telex and most recently, email.” Rio Properties, Inc., 284 F.3d at 1016 (collecting cases). 9 Plaintiff's motion is DENIED without prejudice. 10 SO ORDERED. 11 Dated: August 12, 2020 Seeston varie SUSAN VAN KEULEN United States Magistrate Judge 16 18 19 20 21 22 23 24 25 26 27 28 2 The Court’s copy of Dkt. 9-25 (Exhibit F) is illegible.