Samsung Electronics Co. Ltd. et al v. Early Bird Savings et al

Filing 34

ORDER: (1) Granting 31 Motion to Extend the Existing TRO; (2) Granting 32 Motion for Leave to Serve Defendants by Alternative Means. Signed by Judge Roger T. Benitez on 8/3/2015. (knb)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14

SAMSUNG ELECTRONIC CO.,
LTD., a Korean corporation; and
SAMSUNG
TELECOMMUNICATIONS
AMERICA, LLC, a Delaware
corporation,
vs.

Plaintiffs,

16
18
19

EARLY BIRD SAVINGS, a company
operating from China; SHENZHEN
OKELER SCIENCE &
TECHNOLOGY CO., LTD., a
company operating in China,

(1) GRANTING MOTION TO
EXTEND THE EXISTING
TEMPORARY RESTRAINING
ORDER

[Docket Nos. 31, 32]

Defendants.

20
21

ORDER:

(2) GRANTING MOTION FOR
LEAVE TO SERVE DEFENDANTS
BY ALTERNATIVE MEANS

15
17

CASE NO. 13-CV-3105-BEN (JLB)

Plaintiffs Samsung Electronic Co. Ltd. and Samsung Telecommunications

22 America, LLC (collectively, “Samsung”) filed (1) a Motion to Extend the Existing
23 Temporary Restraining Order and (2) a Motion for Leave to Serve by Alternative
24 Means. (Docket Nos. 31, 32.) For the reasons stated below, this Court GRANTS
25 the Motions.
26
27

BACKGROUND
On December 20, 2013, Samsung brought this trademark infringement action

28 against Defendants who are Chinese companies. (Docket No. 1.) On January 7,
-1-

13cv3105

1 2014, this Court issued a Temporary Restraining Order (“TRO”) freezing
2 Defendants Paypal account. (Docket No. 11.) On September 15, 2014, Samsung
3 received its first response from the Chinese Central Authority (“CCA”) that service
4 had been attempted on Defendants. However, the CCA indicated that service was
5 not completed because Defendants refused to accept the documents. In granting an
6 extension of the existing TRO, the Court instructed Samsung to make a second
7 attempt to serve Defendants according to the Hague Convention and Chinese Civil
8 Procedure Law. (Docket No. 24.) On October 3, 2014, Samsung prepared a second
9 Request for Service Abroad, including explicit instructions to leave the documents
10 with Defendants, even where they refuse to accept, according to Chinese law.
11 (Docket No. 26, Ex. 1.)
12

On June 24, 2015, Samsung received a response from the CCA regarding its

13 second request for service. (Mot. on TRO 2-3.) The CCA indicated that service had
14 not been completed for two reasons: first, that Defendant Early Bird Savings is not
15 located at the address; and second, the Defendant Okeler refused to accept the
16 documents. (Id.) The existing TRO is set to expire on August 4, 2015. (Docket No.
17 30.)
18
19

DISCUSSION
Pursuant to Federal Rule of Civil Procedure 4(h)(2) and (f)(3), a plaintiff may

20 effect service upon a foreign company by any means “not prohibited by international
21 agreement, as the court orders.” The alternative method must be “reasonably
22 calculated, under all the circumstances, to apprise the interested parties of the
23 pendency of the action and afford them an opportunity to present their objections.”
24 Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002) (citation
25 omitted).
26

Samsung asks this Court to allow service by email. When the TRO first went

27 into effect, Paypal notified the account holders by email that their assets had been
28 frozen by court order. Paypal also stated email is its only method of communicating
-2-

13cv3105

1 with an account holder. After learning of the frozen Paypal account, a Mr. Brooks,
2 asserting that he represented Defendants, contacted Samsung’s counsel to attempt to
3 resolve the matter. Further, Defendants represent to the public that they may be
4 contacted by the emails listed below. Samsung has therefore provided adequate
5 explanation that the following three email addresses will adequately notify
6 Defendants of the instant lawsuit: [e-mail];
7 [e-mail]; and [e-mail]. As it appears that the
8 CCA service agent did not comply with Samsung’s requested service by a particular
9 method, the Court agrees that an extension of the TRO to allow for service by email
10 is appropriate.
11
12

CONCLUSION
Accordingly, Samsung’s Motions are GRANTED. The TRO is EXTENDED

13 until November 4, 2015. Samsung may serve the Complaint and Summons on
14 Defendants by sending copies of the documents to [e-mail];
15 [e-mail]; and [e-mail]. The Motion Hearing
16 scheduled for August 24, 2015 is vacated.
17

IT IS SO ORDERED.

18 DATED: August 3, 2015
19
20

Hon. Roger T. Benitez
United States District Judge

21
22
23
24
25
26
27
28
-3-

13cv3105