Fourte International Limited BVI et al v. Pin Shine Industrial Co., LTD. et al

Filing 13

ORDER denying Plaintiffs' 5 Ex Parte Motion for Order Authorizing Alternative Means of Service of Summon and Complaint; denying Plaintiffs' 9 Supplemental Ex Parte Motion for Order Authorizing Service of Summons and Complaint on Defendants Suzhou Pinshine Technology Co. Ltd and Suzhou Sunshine Technology Co., Ltd by Personal Service to Their California Counsel. Signed by Judge Cynthia Bashant on 4/11/2018. (jah)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 FOURTE INTERNATIONAL LIMITED BVI, et al., 14 15 Case No. 18-cv-00297-BAS-BGS ORDER DENYING EX PARTE MOTIONS FOR ORDER AUTHORIZING ALTERNATIVE MEANS OF SERVICE OF SUMMONS AND COMPLAINT Plaintiffs, v. 16 17 18 PIN SHINE INDUSTRIAL CO., LTD., et al., [ECF Nos. 5. 9] Defendants. 19 20 Pending before the Court is Plaintiff Fourte International Limited BVI and 21 Plaintiff Fourte International Sdn. Bhd.’s (collectively, “Plaintiffs”) ex parte motion 22 and supplemental ex parte motion for an order authorizing Plaintiffs to use alternative 23 methods to serve the complaint and summons on Defendants Suzhou Pinshine 24 Technology Co., Ltd. (“Pinshine”) and Suzhou Sunshine Technology Co., Ltd. 25 (“Sunshine”) (collectively, “Defendants”), both located in China. (ECF Nos. 5, 9.) 26 Plaintiffs requests two alternative avenues pursuant to Rule 4(h)(2) and Rule 4(f)(3): 27 (1) email service (ECF No. 5), and (2) service on the office of Defendants’ California 28 –1– 18cv0297 1 attorney (ECF No. 9). Defendants’ counsel opposed both ex parte motions. (ECF 2 Nos. 6, 10.) 3 Previously, this Court granted Plaintiffs’ ex parte application requesting the 4 Court to authorize service of the summons and complaint by the Clerk of the Court 5 pursuant to Rule 4(f)(2)(C)(ii) on two other defendants, Pin Shine Industrial Co., Ltd. 6 and Bobbin & Tooling Electronics International Company of BVI. (ECF No. 4.) The 7 motion was unopposed. Service was not affected upon Pin Shine Industrial Co., Ltd. 8 because Pin Shine Industrial Co., Ltd. refused to accept the delivery. (ECF No. 11.) 9 For the reasons herein, the Court DENIES Plaintiffs’ ex parte requests. 10 11 I. LEGAL STANDARD 12 Under Federal Rule of Civil Procedure Rule 4(h)(2), if a corporation is served 13 outside any judicial district of the United States, it must be served “in any manner 14 prescribed by Rule 4(f) for serving an individual, except personal delivery under 15 (f)(2)(C)(i).” Rule 4(f) permits service on an individual, other than a minor, an 16 incompetent person, or a person whose waiver has been filed, at a place not within 17 any judicial district of the United States by one of three means. Of the methods Rule 18 4(f) permits, it “does not denote any hierarchy or preference of one method of service 19 over another.” Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th 20 Cir. 2002). Rule 4(f)(1) expressly addresses service pursuant to the Hague 21 Convention. See Fed. R. Civ. P. 4(f)(1). Like the United States, China is a signatory 22 to the Hague Convention. The Hague Convention requires signatory countries to 23 establish a Central Authority to receive requests for service of documents from other 24 countries and to serve those documents by methods compatible with the internal laws 25 of the receiving state. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 26 694, 698-99 (1988). Service through a country’s Central Authority is the principal 27 means of service under the Hague Convention. 28 –2– 18cv0297 1 Rule 4(f)(3) permits service on an individual located abroad “by other means 2 not prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 3 4(f)(3); cf. Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 n.4 (9th Cir. 4 2002) (“A federal court would be prohibited from issuing a Rule 4(f)(3) order in 5 contravention of an international agreement, including the Hague Convention, 6 referenced in Rule 4(f)(1).”). Service by email or on local U.S. counsel is not 7 expressly prohibited by the Hague Convention. See Art. 1-14; see also California Bd. 8 Sports, Inc. v. G.H. Dijkmans Beheer B.V., No. CIV.09CV1855LRBB, 2009 WL 9 3448456, at *1 (S.D. Cal. Oct. 21, 2009). The Ninth Circuit has determined that 10 “service of process under Rule 4(f)(3) is neither a ‘last resort’ nor ‘extraordinary 11 relief,’” Rio Props., 284 F.3d at 1015 (quoting Forum Fin. Grp., LLC v. President & 12 Fellows, 199 F.R.D. 22, 23-23 (D. Me. 2001)), and is available “without first 13 attempting service by other means.” Id. (referring to the advisory committee notes to 14 Rule 4(f)). However, the moving party must show “that the facts and circumstances 15 of the . . . case necessitate[ ] the district court's intervention.” Id. at 1016 (finding 16 alternative means of service was necessary because defendant was “elusive” and 17 “striving to evade service of process”). 18 19 II. DISCUSSION 20 As an initial matter, Plaintiffs argue for the first time in their Reply that 21 Defendants cannot “specially appear” in federal court, and thus, by filing oppositions 22 to Plaintiffs’ motions regarding service, the Court “should find that Defendants . . . 23 are deemed served.” (ECF No. 7 at 2-3.) Even if the Court was to consider this 24 argument, it fails. See Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (finding that 25 making a “general appearance” requires an intention to appear); see also Twin Rivers 26 Eng’g, Inc. v. Fieldpiece Instruments, Inc., No. CV 16-04502-BRO (MRWx), 2016 27 WL 7479373, at *11 (C.D. Cal. Sept. 8, 2016) (rejecting plaintiff’s argument 28 regarding special appearances when defendant explicitly stated it intended to –3– 18cv0297 1 challenge service in its first appearance to dispute an entry of default). Though 2 Defendants’ counsel’s label that he is “specially appearing” has no legal significance, 3 it “does emphasize a party’s intent to object to jurisdiction.” McGarr v. Hayford, 52 4 F.R.D. 219, 221 (S.D. Cal. 1971). Defendants have not waived any arguments 5 relating to insufficient service; instead, each appearance counsel has made is to solely 6 dispute the methods of service. See Peterson v. Highland Music, Inc., 140 F.3d 1313, 7 1318 (9th Cir.1998); cf. Neumont Univ., LLC v. Nickles, 304 F.R.D. 594, 597 (D. 8 Nev. 2015) (“Such defenses may also be waived when a defendant ‘engage[s] in . . . 9 deliberate, strategic behavior’ in defending against the lawsuit.”). Thus, the Court 10 declines to find Defendants have waived any arguments regarding service or that 11 Defendants have been served. 12 As to Plaintiffs’ requests for a court order to serve Defendants by other 13 alternative methods under Rule (f)(3), the Court denies Plaintiffs’ requests. The Court 14 finds that Plaintiffs have not shown that the circumstances of this action necessitate 15 the Court’s intervention. Plaintiffs only argue that the requested alternative methods 16 of service are the most efficient and effective methods of service, but this argument 17 does not meet the requisite standard for obtaining a court order. See Rio Props., 284 18 F.3d at 1016; see also California Bd. Sports, Inc., 2009 WL 3448456, at *2 (denying 19 request for service on U.S. counsel when plaintiff only argued that service through 20 available methods was “too slow”). Plaintiffs have not alleged any facts that show 21 that the available methods of service have failed to affect service, that this case is of 22 particular urgency requiring alternative service methods, or any other facts to support 23 their requests. Instead, Plaintiffs only state that they attempted to serve a “waiver of 24 service of summons packet” on Pinshine by Federal Express, which Pinshine refused. 25 (Schierling Decl., ECF No. 5-1, ¶ 2.) 26 27 Therefore, the Court DENIES Plaintiffs’ ex parte requests to permit email service and service on Defendants’ counsel under Rule 4(f)(3). 28 –4– 18cv0297 1 III. CONCLUSION 2 For the foregoing reasons, the Court DENIES Plaintiffs’ ex parte requests to 3 authorize alternative service of process on Defendants Pinshine and Sunshine. (ECF 4 Nos. 5, 9.) 5 IT IS SO ORDERED. 6 7 DATED: April 11, 2018 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –5– 18cv0297

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