Mi Ryung v. TJ Media USA, Inc.

Filing 39

ORDER GRANTING MOTION FOR AN ORDER AUTHORIZING ALTERNATIVE SERVICE AND VACATING HEARING by Hon. William Alsup granting 33 Motion.(whalc1, COURT STAFF) (Filed on 2/18/2014)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA

8
9
United States District Court
For the Northern District of California

10

JIN MI RYUNG, on behalf of herself
and all others similarly situated,

No. C 13-04935 WHA

11
Plaintiff,
12
v.
ORDER GRANTING MOTION FOR AN
ORDER AUTHORIZING ALTERNATIVE
SERVICE AND VACATING HEARING

13
14
15

TJ MEDIA USA, INC., and
TJ MEDIA CO., LTD.,
Defendants.
/

16
17
18

INTRODUCTION
In this putative class action for misappropriation of likeness in connection with karaoke

19

machines, plaintiff moves for authorization to serve a foreign-parent defendant through its

20

domestic subsidiary. The domestic-subsidiary defendant does not oppose. For the reasons

21

stated below, the motion is GRANTED. The hearing set for March 13 is VACATED.

22
23

STATEMENT
In October 2013, plaintiff filed a putative class action complaint against defendant TJ

24

Media USA, Inc. alleging California state-law and common-law claims. “Plaintiff, an

25

individual, is a citizen of Korea” (Compl. ¶ 3). In December 2013, defendant TJ Media USA

26

answered and admitted that TJ Media Co., Ltd. is the parent company of TJ Media USA

27
28

1

(Ans. ¶ 1). The action was then reassigned to the undersigned judge. In January 2014, plaintiff

2

filed an amended putative class action complaint, adding the parent company, TJ Media Co.,

3

Ltd, as a defendant. “TJ Media Co. is a foreign corporation headquartered in Seoul, Korea”

4

(Dkt. No. 26). The amended complaint proposed the following classes:

5

Any person or entity whose music is featured in one of
Defendants’ Machines sold in the United States that also features
the person’s or entity’s image, video, or likeness.

6
7

Any person or entity whose music is featured in one of
Defendants’ Machines sold in the State of California, the State of
New York, the Commonwealth of Virginia, the State of Texas, the
State of Illinois, the State of Georgia, and the State of Washington,
that also features the person’s or entity’s image, video, or likeness.

8
9
United States District Court
For the Northern District of California

10
(Amd. Compl. ¶¶ 38, 39). The operative amended complaint added five claims for relief
11
alleging misappropriation of publicity rights under New York, Virginia, Texas, Washington,
12
Illinois, and Georgia state and common law. A summons directed at defendants was then
13
issued. Plaintiff provided the following address for defendant TJ Media Co., the parent
14
company, “640-8 Deungchon-Dong, Gangseo-Gu, Seoul, Korea” (Dkt. Nos. 27, 28). In
15
defendant TJ Media USA’s answer to the amended complaint, defendant noted (as an
16
affirmative defense) that “[t]here is another action pending in the Republic of South Korea
17
regarding the issue of whether plaintiff gave consent for use of her image or likeness”
18
(Dkt. No. 34).
19
On January 28, plaintiff filed the instant motion for “an order authorizing her to serve
20
[TJ Media Co., Ltd.] through its domestic subsidiary, TJ Media USA.” Other than perhaps
21
counsel for the domestic subsidiary, “Plaintiff has been unable to locate any designated
22
registered agents for service of process or other agents authorized to accept service of process
23
on [the foreign parent’s] behalf in the United States” (Smith, Jr. Decl. ¶¶ 4, 6, 9, 10). Plaintiff
24
then filed a certificate of service stating that the motion and accompanying papers were served
25
via federal express overnight delivery to “TJ Media Co., Ltd., 23, Hwagok-ro 64-gil,
26
Gangseo-gu, Seoul, Korea” (Dkt. Nos. 33, 35).
27
On February 11, counsel for plaintiff and counsel for TJ Media USA, Inc. appeared for a
28
case management conference. TJ Media USA indicated that they would be filing a notice of
2

1

non-opposition to the motion shortly. Indeed, TJ Media USA then filed a statement stating that

2

plaintiff’s motion “is not directed at defendant TJ Media USA, Inc.” and “[c]onsequently, TJ

3

Media USA takes no position thereon” (Dkt. No. 37).

4

A February 11 case management order set a number of deadlines. Initial disclosures are

5

due by February 21 on pain of preclusion, the fact discovery cut-off is October 31, and the jury

6

trial begins February 2, 2015 (Dkt. No. 36). At the case management conference, counsel was

7

also reminded of the notice regarding factors to be evaluated for any proposed class settlement

8

(Dkt. No. 18).

9
United States District Court
For the Northern District of California

10

All parties who have appeared in this action have had an opportunity to respond in
writing and be heard orally. The motion is thus ripe to decide.

11
12
13
14

ANALYSIS
Service of an individual in a foreign country is governed by FRCP 4(f) which states:
Unless federal law provides otherwise, an individual — other than
a minor, an incompetent person, or a person whose waiver has
been filed — may be served at a place not within any judicial
district of the United States:

15
16
17
18
19

(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;
*

*

*

(3) by other means not prohibited by international agreement, as
the court orders.

20
See also FRCP 4(h)(2). “[C]ourt-directed service under Rule 4(f)(3) is as favored as service
21
available under Rule 4(f)(1) or Rule 4(f)(2).” Rio Properties, Inc. v. Rio Int’l Interlink, 284
22
F.3d 1007, 1015 (9th Cir. 2002). In other words, FRCP 4(f)(3) provides an alternative means of
23
service as long as it is directed by the court and not prohibited by international agreement.
24
The Republic of Korea is a signatory of the Hague Convention on Service Abroad of
25
Judicial and Extrajudicial Documents in Civil and Commercial Matters. Plaintiff, however, in
26
an effort to obviate additional expenses in this putative class action, asked counsel for the
27
domestic-subsidiary defendant on December 30 and January 23, whether counsel would also be
28
3

1

representing the foreign-parent defendant and whether counsel would accept service on behalf

2

of the foreign-parent. Counsel has not indicated one way or another.

3

This order finds that the proposed service on the foreign parent TJ Media Co. through its

4

domestic subsidiary, TJ Media USA, is not prohibited by international agreement and comports

5

with due process. The method of service ordered by the district court must be “reasonably

6

calculated, under all the circumstances, to apprise interested parties of the pendency of the

7

action and afford them an opportunity to present their objections.” Rio, 284 F.3d at 1016.

8

Serving the domestic subsidiary is reasonably calculated, under these circumstances, to apprise

9

the foreign parent of the pendency of the action and afford the foreign parent an opportunity to

United States District Court
For the Northern District of California

10

respond. This order is without prejudice to TJ Media Co. responding in due course.

11
12

CONCLUSION
For the reasons stated, plaintiff’s motion for an order authorizing service of defendant

13

TJ Media Co., Ltd. through its domestic subsidiary, TJ Media USA, Inc. is GRANTED. The

14

hearing set for March 13 is VACATED.

15
16

IT IS SO ORDERED.

17
18
19

Dated: February 18, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

20
21
22
23
24
25
26
27
28
4