Stewart et al v. Xinchang Zhongke Electric Co., Ltd. et al

Filing 21

ORDER QUASHING SERVICE re 19 Response to Order to Show Cause filed by H. Alice Chen, Nicholas E. Stewart, 17 Order to Show Cause,, Set Deadlines,. Signed by Judge Alsup on 6/20/16. (whalc1, COURT STAFF) (Filed on 6/20/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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NICHOLAS E. STEWART, and H. ALICE
CHEN,
Plaintiffs,

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No. C 16-01407 WHA

v.
XINCHANG ZHONGKE ELECTRIC CO.,
LTD., XINCHANG THUNDEREAGLE
CO., LTD., SHENZHOU HOWRICH
IMPORT & EXPORT CO., LTD., and
BRENDA XING,

ORDER QUASHING SERVICE

Defendants.
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Pro se plaintiffs were ordered to show cause why service should not be quashed for

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failing to comply with the Hague Convention on Service Abroad of Judicial and Extrajudicial

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Documents in Civil or Commercial Matters when serving defendants in China. Article 3 of the

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Hague Convention requires the documents to be served to be transmitted to the “Central

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Authority of the State Addressed,” and Article 5 provides that “[t]he Central Authority of the

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State addressed shall itself serve the document or shall arrange to have it served by an

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appropriate agency . . . .”

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Plaintiffs did not transmit the summons and complaint to the Central Authority in China

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but rather attempted service at defendants’ places of business in China via FedEx. This plainly

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does not comply with Articles 3 and 5 of the Hague Convention.

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Article 10(a) of the Hague Convention provides that “the present convention shall not

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interfere with [] the freedom to send judicial documents, by postal channels, directly to persons

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abroad” but does not specify how service by postal channels may be used. Plaintiffs note that

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Rule 4(f)(2) of the Federal Rules of Civil Procedure permits service by means that are allowed

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by the Hague Convention, although the means are not specified therein. Thus, plaintiffs

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contend that service via FedEx constitutes proper service in China under the Hague Convention.

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Not so.

means under the Hague Convention “unless prohibited by the foreign country’s law . . . .”

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China expressly rejected Article 10 of the Hague Convention. Hague Convention, China

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For the Northern District of California

Plaintiffs omit key prefatory language from Rule 4(f)(2), which permits alternative

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United States District Court

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Declarations and Notifications, ¶ 3. Accordingly, service by postal channels in China is

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inadequate under Rule 4(f)(2).

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Nor can plaintiffs rescue their attempt at service via Rule 4(f)(3), which provides for

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service “by other means not prohibited by international agreement, as the court orders.”

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Plaintiffs never sought a court order permitting alternative service under Rule 4(f)(3), and no

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such order issued.

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Accordingly, service on defendants is QUASHED.

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The Court is sympathetic to plaintiffs’ efforts to pursue their claims, however, the rules

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must be followed carefully. Plaintiffs shall have until SEPTEMBER 20 to properly serve

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defendants. If service is not effected by that deadline, the Court will entertain a motion for a

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further extension supported by a sworn declaration showing prompt and diligent efforts.

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IT IS SO ORDERED.

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Dated: June 20, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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