Gustafson v. Amazon.com Incorporated et al

Filing 48

ORDER denying 44 Gustafson's Motion for Alternative Service. (See the Order attached for additional information.) Signed by Judge Sharad H. Desai on 3/26/2025. (RMW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Stanley M Gustafson,

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Plaintiff,

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v.

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Amazon.com Incorporated, et al.,

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No. CV-24-01834-PHX-SHD
ORDER

Defendants.

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Pending before the Court is Plaintiff Stanley Gustafson’s Motion to Authorize

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Alternative Service on Chinese Defendants Via Email. (Doc. 44.) He requests to serve

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several foreign defendants by “emailing the Amended Summons, translated into Mandarin

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Chinese, to [the defendants’] attorney’s known email address.” (Id. at 1.) For the following

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reasons, Gustafson’s motion is denied without prejudice.

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I.

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As the Court set out in its previous Orders, the Court has given Gustafson over eight

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months to serve the foreign defendants, and ordered Gustafson to serve the foreign

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defendants by May 1, 2025, or explain the efforts he has taken to serve them. (See

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generally Doc. 39.) The Court noted that “this action has largely been on hold while

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Gustafson purportedly has attempted to serve the foreign defendants,” and the “case has

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been pending for almost one year without any real progress for the Amazon Defendants.”

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(Id. at 3.)

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BACKGROUND

After the Court issued that Order, Gustafson filed the above-mentioned Motion for

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Alternative Service. (Doc. 44.) In it, Gustafson states that he has “confirmed” that the

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email address [e-mail] belongs to the foreign defendants’ counsel,

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named “Sophia.” (Id. at 2.) Although Gustafson states in several places that he “verified”

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and “confirmed” that this email address belongs to the foreign defendants’ counsel, he does

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not provide the Court with any information about how he verified or confirmed that counsel

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represents all four foreign defendants. (See id. at 3.) He asks the Court to authorize

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effectuating service by emailing the foreign defendants’ supposed counsel, “instead of the

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Hague Convention process.” (Id. at 2.)

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II.

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Federal Rule of Civil Procedure 4 provides that a foreign entity may be served

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LEGAL STANDARD

overseas through one of the following means:
(1) “by any internationally agreed means of service that is reasonably
calculated to give notice, such as those authorized by the Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents”;
(2) “if there is no internationally agreed means, or if an international
agreement allows but does not specify other means, by a method that is
reasonably calculated to give notice,” including “as prescribed by the
foreign country’s law for service in that country,” “as the foreign
authority directs in response to a letter rogatory or letter of request,” or,
unless prohibited by the foreign country, “using any form of mail that
the clerk addresses and sends to the individual and that requires a signed
receipt”; or
(3) “by other means not prohibited by international agreement, as the court
orders.”
Fed. R. Civ. P. 4(f), (h)(2).

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III.

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As an initial matter, the Court is skeptical that it can grant Gustafson’s requested

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relief under the circumstances. The Court may only authorize an alternative service

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method that is “not prohibited by international agreement.” Fed. R. Civ. P. 4(f)(3). China

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is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial

DISCUSSION

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Documents (the “Hague Service Convention”) but opposes (1) the use of postal channels

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to send judicial documents directly to foreign defendants and (2) effectuating service

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through “judicial officers, officials or other competent persons.” China – Central Authority

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&

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https://www.hcch.net/en/states/authorities/details3/?aid=243 (last updated Mar. 14, 2025);

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see also Facebook, Inc. v. 9 Xiu Network (Shenzhen) Tech. Co., 480 F. Supp. 3d 977, 983

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(N.D. Cal. 2020). China’s Ministry of Justice states that it is “the only legal authority to

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receive requests for service of judicial document from abroad,” and “[a]ny attempt of

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service by postal way from abroad is opposed and invalid.” Ministry of Justice, People’s

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Republic of China, The Most Frequently Asked Questions and Answers, Hague Conf. on

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Private

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a2ccbd7479d6.pdf (last visited Mar. 26, 2025).

practical

Int’l

information,

L.,

Hague

Conf.

on

Private

Int’l

L.,

https://assets.hcch.net/docs/5bbc302d-532b-40b1-9379-

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“[T]he Hague Service Convention specifies certain approved methods of service

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and pre-empts inconsistent methods of service wherever it applies.” Water Splash, Inc. v.

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Menon, 581 U.S. 271, 273 (2017) (quotation marks omitted); see also Volkswagenwerk

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Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) (noting that the Hague Service

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Convention, by its own terms, “shall apply in all cases, in civil or commercial matters,

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where there is occasion to transmit a judicial or extrajudicial document for service abroad”

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(citation omitted)). If the receiving state—here, China—objects to service by mail, service

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by mail is not allowed. Id. at 284. As noted above, China has so objected, so service by

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mail is not allowed. See id.; Schlunk, 486 U.S. at 699; id. at 708 (Brennan, J., concurring)

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(“[T]he terms of the [Hague Service Convention] are ‘mandatory,’ not ‘optional’ with

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respect to any transmission that Article 1 covers.”); cf. Societe Nationale Industrielle

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Aerospatiale v. U.S. Dist. Ct. for So. Dist. of Iowa, 482 U.S. 522, 534 & n.15 (1987) (noting

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that the Hague Evidence Convention preamble “purport[ed] to describe the procedures for

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all permissible transnational discovery and exclude[d] all other existing practices,” in

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contrast with the Hague Service Convention, which did contain such “mandatory”

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language).

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Gustafson has not argued that service by email is permissible where service by

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regular mail is not. In fact, several courts have concluded that email service on Chinese

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defendants is not permitted under the Hague Service Convention. See, e.g., 9 Xiu Network,

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480 F. Supp. 3d at 983–87 (collecting and analyzing authority and concluding that service

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by email on Chinese defendants was not authorized by the Hague Service Convention and

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therefore not permitted at all). Nor has Gustafson argued that an exception to the Hague

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Service Convention applies in this case. See id. at 986 (noting that exceptions to the Hague

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Service Convention are “either expressly identified in the Convention or they arise when

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the receiving country doesn’t comply with the Convention”); see also Amazon.com, Inc. v.

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Yong, 2023 WL 3075636, at *2 (W.D. Wash. 2023) (“The Hague [Service] Convention

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expressly ‘shall not apply where the address of the person to be served with the document

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is not known.’” (citation omitted)).

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Although Gustafson argues that Ninth Circuit precedent authorizes alternative

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service by email in these circumstances, the Court disagrees. (Doc. 44 at 3.) In Rio

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Properties, Inc. v. Rio International Interlink, the Ninth Circuit affirmed the district court’s

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exercise of discretion to permit a foreign defendant be served through the foreign

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defendant’s attorney who lived in the United States. 284 F.3d 1007, 1013 (9th Cir. 2002).

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Unlike here, the foreign defendant “claimed an address in Miami, Florida.” Id. Further,

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in that case, when the foreign defendant’s attorney reached out to the plaintiff, the attorney

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confirmed that the foreign defendant had already received service of the summons and

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complaint through its Costa Rican courier, and there was some indication that the defendant

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was “striving to evade service of process.” Id. at 1013, 1016.

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To the extent Rio Properties even applies in cases where, as here, the foreign

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defendant resides in a country that is a Hague Service Convention signatory and the

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plaintiff has not argued that an exception to the Hague Service Convention applies,1 the

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As the court in 9 Xiu Network noted, Costa Rica was not a Hague Service
Convention signatory, so compliance with its provisions was not at issue. 480 F. Supp. 3d
at 985; Bolivia, Costa Rica, Singapore and Vietnam: Conventions enter into force, Hague
Conf. on Private Int’l L. (Oct. 1, 2016), https://www.hcch.net/en/newsarchive/details/?varevent=521#:~:text=1965%20Service%20Convention%20%2D%20Co
sta%20Rica,States%20to%20the%20Convention%2C%20respectively (noting that the
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circumstances present in Rio Properties are not present here. First, Gustafson did not

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provide the Court with any information permitting the Court to conclude that “Sophia” is

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indeed counsel for all of the foreign defendants, such as submitting a declaration attaching

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his communications with the supposed counsel. (See generally Doc. 44.) Second, even if

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she is counsel for the foreign defendants, there is nothing to indicate that the foreign

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defendants already had notice of the pending lawsuit or that counsel is located in the United

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States. (Id.) See Schlunk, 486 U.S. at 708 (Brennan, J., concurring) (“[A] litigant may,

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consistent with the [Hague Service] Convention, serve process on a foreign corporation by

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serving its wholly owned domestic subsidiary, because such process is not ‘service abroad’

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within the meaning of Article 1.”). Third, Gustafson has not provided the Court with any

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indication that the foreign defendants have or claim some address in the United States.

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(Doc. 44.) Last, there is nothing to indicate that the foreign defendants are “striving to

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evade service of process,” unlike the defendant in Rio Properties. 284 F.3d at 1016.

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Thus, even if the Court can authorize alternative service on the foreign defendants’

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(seemingly foreign) attorney in this case, 9 Xiu Network, 480 F. Supp. 3d at 986 (“[W]hen

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the [Hague Service] Convention applies and no exception is applicable, the plaintiff cannot

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invoke [Rule] 4(f)(3) . . . .”), Gustafson has not shown at this time that “the facts and

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circumstances of the present case necessitate[] the [Court’s] intervention.” Rio Props., 284

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F.3d at 1016. The Court’s denial is without prejudice to Gustafson bringing another motion

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for alternative service in the future if, for example, he is unable to locate a physical address

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for the foreign defendants and he is able to provide sufficient evidence to the Court to

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satisfy it that service by email to defendants’ counsel at the proposed email address(es) is

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reasonably calculated to give notice to the foreign defendants.

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Accordingly,

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///

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Hague Service Convention became effective in Costa Rica on October 1, 2016).
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IT IS ORDERED that Gustafson’s Motion for Alternative Service (Doc. 44) is
denied without prejudice.
Dated this 26th day of March, 2025.

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