Cheetah Mobile, Inc. et al v. APUS Group

Filing 57

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING QUASHING SERVICE AND GRANTING 56 STIPULATION RE 29 . (ndrS, COURT STAFF) (Filed on 10/21/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHEETAH MOBILE, INC., et al.,

Case No. 15-cv-02363-HSG

Plaintiffs,
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ORDER QUASHING SERVICE AND
GRANTING STIPULATION

v.
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APUS GROUP,

Re: Dkt. Nos. 29, 56

Defendant.

United States District Court
Northern District of California

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Pending before the Court is Defendant APUS Group’s motion to dismiss and the parties’

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joint stipulation regarding sufficiency of process and hearing on motion to dismiss. Dkt. Nos. 29,

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56. Defendant moves to dismiss Plaintiffs Cheetah Mobile, Inc., Cheetah Mobile America, Inc.,

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and Cheetah Technology Corp. Ltd.’s complaint based on (1) forum non conveniens, (2) lack of

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personal jurisdiction, and (3) improper service. In the alternative, Defendant moves to dismiss

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Plaintiffs’ trademark, copyright, defamation, and trade libel claims pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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For the reasons stated below, the Court instead QUASHES service and DEFERS ruling on

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the motion to dismiss until service is properly effectuated. The parties’ stipulation is GRANTED.

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I.

BACKGROUND
Plaintiffs attempted to personally serve Defendant on May 27, 2015, in California.

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However, the summons served on Defendant was not signed by the clerk and did not bear the

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court’s seal. Dkt. No. 25-8. Indeed, the Court did not issue the summons until May 28, 2015.

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Dkt. No. 8. After being informed by Defendant’s counsel of its contention that this service was

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defective, Plaintiffs initiated service of process via the Hague Convention on June 11, 2015. Dkt.

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No. 37-17. As of October 8, 2015, the Hague Convention service of process had not yet been

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completed. Hr’g Tr. at 3:8-19.
II.

DISCUSSION

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“Before a federal court may exercise personal jurisdiction over a defendant, the procedural

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requirement of service of summons must be satisfied.” Omni Capital Int’l, Ltd. v. Rudolf Wolff &

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Co., 484 U.S. 97, 104 (1987). Plaintiff “bear[s] the burden of establishing that service was valid

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under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). The Ninth Circuit has

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held that “[t]echnical defects in a summons do not justify dismissal unless a party is able to

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demonstrate actual prejudice.” Chan v. Soc’y Expeditions, 39 F.3d 1398, 1404 (9th Cir. 1994).
Federal Rule of Civil Procedure 4 provides that a summons must “be signed by the clerk”

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and “bear the court’s seal.” In this case, the summons did not bear the seal of the Court or the

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United States District Court
Northern District of California

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signature of the clerk.
Defendant does not make any showing that it has suffered actual prejudice, but instead

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argues that the summons here was so defective as to require dismissal of the case. The Third

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Circuit agreed in a similar case in which the plaintiff served the defendant with a summons that

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did not bear the court’s seal or the clerk’s signature. Ayres v. Jacobs & Crumplar, P.A., 99 F.3d

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565, 569 (3d Cir. 1996) (“The failure of a plaintiff to obtain valid process from the court to

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provide it with personal jurisdiction over the defendant in a civil case is fatal to the plaintiff’s

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case.”). The Third Circuit concluded that, under such circumstances, “[n]otice of a claim is not

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sufficient,” and “such suit should be dismissed under [Rule] 12(b)(2).” Id.

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This Court adopts the reasoning of Ayres and holds that the defects in service here are not

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merely “technical.” However, because this case is in its early stages and Defendant has not been

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prejudiced by the insufficient service, the Court finds it appropriate to quash service and grant

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Plaintiffs additional time to properly serve Defendant, rather than dismiss the case in full.

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III.

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CONCLUSION
The Court QUASHES service and EXTENDS Plaintiffs’ deadline to properly effectuate

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service to February 15, 2016. Within five days of the date service is completed or the deadline to

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complete service, whichever comes first, the parties shall file a joint statement notifying the Court

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of the status of service. Additionally, the Court GRANTS the parties’ stipulation and sets a
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further hearing on Defendant’s motion to dismiss on March 31, 2016 at 2:00 p.m. in Courtroom

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15, 18th Floor, 450 Golden Gate Avenue, San Francisco. The parties shall meet and confer and

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file supplemental briefs in accordance with the schedule laid out in their stipulation.

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IT IS SO ORDERED.
Dated: 10/21/2015
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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