Red Alpha LLC v. Red Alpha Cybersecurity PTE. LTD.

Filing 12

MEMORANDUM OPINION. Signed by District Judge Brendan Abell Hurson on 5/9/2024. (ybs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

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RED ALPHA LLC,
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Plaintiff,
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V.

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RED ALPHA CYBERSECURITY
PTE.LTD.,

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Defendant.
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Civil No. 23-3259-BAH

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MEMORANDUM OPINION

Plaintiff Red Alpha LLC ("Plaintiff') brought suit against Red Alpha Cybersecurity PTE.
LTD. ("Defendant") for trademark infringement and unfair competition. ECF 1 (complaint), ECF
8 (amended complaint). Plaintiff has filed a motion for preliminary injunction, ECF 10, and a
motion for alternative service, ECF 1 L The motion for alternative service includes four exhibits:
(1) screenshots of Defendant's website showing programs offered in Singapore and San Antonio,
TX, ECF 11-1; (2) a Federal Express tracking page showing that a package was delivered to New
York, NY on December 26, 2023, 1 ECF 11-2; (3) emails between J'.laintiff s counsel and a process
server who attempted to personally serve Defendant's CEO in New York, ECF 11-3; and (4) sea~ch
results from-the New York Department of State Division of Corporations, ECF 11-4. Defendant
has not responded as it has not yet been served. This memorandum opinion addresses only the
motion for alternative service. The Court has reviewed the motion and the attached· exhibits 2 and

1

The tracking page does not include the specific delivery address.

The Court references all filings by their respective ECF numbers and page numbers by the ECF ~
generated page numbers at the top of the page.
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finds that no hearing is necessary. See Loe. R. 105.6 (D. Md. 2023). Accordingly, for the reasons
•stated below, Plaintiffs motion for alternative service is DENIED WITHOUT PREJUDICE.
I.

BACKGROUND

Plaintiff alleges that Defendant is a Singapore-based cybersecurity training company that
has training centers in the United States. Tampa, Florida, and New York, New York. 3 ECF 1, at
2 'i[ 3; ECF 8, at 2 'if 3. Plaintiff filed suit on December 1, 2023. ECF 1. Plaintiff then amended
the complaint on December 11, 2023, ECF 8, and filed a motion for a preliminary injunction on
December 22, 2023, ECF 10. Plaintiff mailed copies of these filings via Federal Express to
Defendant at 135 W 41st Street 03 11, New York, New York 10035 (the "New York address"), an
address Plaintiff found on Defendant's website. See .ECF 10, at 3; ECF 11, at 1-2. Plaintiff
attempted to personally serve Benjamin Tan, Defendant's CEO, at the New York address on
December 27, 2023, but apparently could not get beyond the building's security desk because
Defendant's office~ were located in an area of the building controlled by the co working space
provider WeWork. 4 See ECFl,l at 2.
Plaintiff contends that Defendant is operating its business in New York and Texas without
having registered to do business in either state as required by respective state law. ECF 11, at 3

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The amended complaint lists the training center locations as Tampa, Florida, and New Yark,
New York. ECF 1, at 2; ECF 8, at 2. The motion for alternative service notes that after the filing
of the amended complaint, Defendant's website now indicates that its U.S. training center is in San
Antonio, Texas; and that the website had removed reference to the Tampa and New York training
centers. See ECF 11, at I n. l.
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Plaintiff attached emails noting the process servers failed effort to serve Defendant at the New
York address. See ECF 11-3, at 2 ("It's not possible, I'm sure you are aware of how We Work
functions. We have no access to their offices and with We Work you have to make arrangements
. with the tenant directly for access."); id. at 3 ("Our agent had an unsuccessful attempt yesterday
12/27/23 @ I :53 PM. The agent reported that the security guard, Dickie, knows of Red Alpha, but
isn't sure of what floor they're on. Dickie also states that the 3rd floor of the building belongs to
a company _called WEWORK, and that the 11th floor of the building has no association to Red
Alpha.").
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(citing N.Y. Bus. Corp. Law§§ p0l(a) 1304(a)(6)-(7); Tex. Bus. Orgs. Code Ann.§§ 5.201(a);
9.001). Thus, Defendant does not have a registered agent who could accept service of process in
either state. See.id. Plaintiff argues that after it unsuccessfully attempted to effect personal service
at the New York address, it "should not be required to take additional steps to achieve service due
to Defendant's failure to comply with the Jaw." Id. at 4. _
Plaintiff proposes the following methods of serving Defendant with process: .
(a) via first-class mail to either Defendant's New York address or its Singapore
address. listed on its website;
(b) via e-mail to the e-mail addresses listed on Defendant's website;
(c) physical service upon the front desk of the New York Address; and/or
(d) in such other manner as the Court deems appropriate. •

Id.

II.

DISCUSSION
A.

General Service of Process Rules

Federal Rule of Civil Procedure 4(h) governs service of process on corporatioqs. If serving
a foreign corporation "in a judicial district of the United States," the plaintiff must effect service
"in the manner prescribed by Rule 4(e)(l) for serving an individual" or "by delivering a copy of
the summons and of the complaint to an officer, a managing or general agent, or any other agent
authorized by appointment or by Jaw to receive service of process and-if the agent is one
authorized by statute and the statute so requires-by also mailing a copy of each to the defendants."
Fed. R. Civ. P. 4(h)(l). Here, pursuant to Fed. R. Civ. P. 4(e)(J) service may be made pursuant to
the service of process rules for Maryland (the state where this Court is located) or New York (the
state where Plaintiff intends to serve Defendant). 5

5 The Federal Rules also contemplate serving a foreign corporate.defendant "at a place not within
any judicial district of the United States." Fed. R. Civ. P. 4(h)(2). Plaintiff has not suggested that
it has attempted to serve Defendant under this rule at Defendant's Singapore address.
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In Maryland, in a suit against a corporation, a summons and complaint are generally served
on the resident agent, president, secretary, or treasurer of the corporation. See Md. R. Civ. P. Cir.
Ct. 2-124(d); see also Md. R. Civ. P. Cir. Ct. 2-121 (a) (detailing the general methods of perfecting
service in Maryland). New York law similarly provides that service may .be.effected.by .de.livering
the summons and complaint "to an officer, director, managing or general, agent, or cashier or
assistant cashier or to any other agent authorized by appointment or by law to receive
service." N.Y. C.P.L.R. § 311(a)(l). Service may also be effected pursuant to N.Y. Bus. Corp
Law §_306 by serving the New York secretary of state and the registered agent. N.Y. Bus. Corp.
Law§ 306(a)-(b)(l).
B.

Alternative Service on Defendant

Though Plaintiff does not cite to any statutes or caselaw governing service of process,
Plaintiff essentially asks the Court for permission to serve Defendant in a manner not expressly
listed in the Federal Rules, Maryland Rules, or New York Rules governing service of process.
ECF 11. Plaintiff purports to be unable to serve Defendant with process because Defendant has
not named a registered agent as it would have been required to do had it properly registered to do
busip.ess in New York or Texas. 6 See ECF 11, at 3-4. Helpfully, New York statutorily prescribes
the method. by which a plaintiff shall serve an unauthorized foreign corporation. 7

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Plaintiff has not indicated an intent to serve Defendant in Texas.

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Maryland has a similar statute authorizing substituted service. Md. R. Civ. P. Cir. Ct. 2-124(0).
However, this method of service i_s inapplicable here, as Plaintiff does not contend that Defendant
has done business·, unauthorized or not, in Maryland. Plaintiff alleges only that "Defendant has
customers that live and/or work in this Judicial District" and that "it markets certain services in
this and other Judicial Districts improperly using trademarks confusingly similar to trademarks
long owned and used by Plaintiff." ECF 8, at 2-3 ,r,r 3, 6.

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Under N.Y. Bus. Corp. Law§ 307; a plaintiff serving an unauthorized foreign corporation
shall serve both the New York secretary of.state and the foreign corporation. § 307(b). Service
on the foreign corporation may be made either by personally delivering the service of process
documents to the foreign corporation or by sending the service documents to
sueµ foreign corporation by registered mail with return receipt requested, at the post
office address specified for the purpose of mailing process, on file in the department
of state, or with any official or body performing the equivalent function, in the
jurisdiction of its incorporation, or if no such address is there specified, to its
registered or other office there specified, or if.no such office is there specified, to
the last address of such foreign corporation known to the plaintiff.
N.Y. Bus. Corp. Law § 307(b)(2). "Business Corporation Law § 307 establishes a mandatory
sequence and progression of service completion options to acquire jurisdiction over a foreign
c9rporation not authorized to do business in New York." VanNorden v. Mann Edge Tool Co., 910
N.Y.S.2d 189, 190 (N.Y. App. Div. 2010)(quoting Stewartv. Volkswagen ofAm., 81 N.Y.2d 203,
207, 613 N.E.2d 518 (N.Y. 1993); see also Republic of Guatemala v. IC Power Asia Dev. Ltd.,
619 F. Supp. 3d 421, 432-33 (S.D.N.Y. 2022) ("[I]n order to properly. effect service of
process under N.Y. Bus. Corp. Law § 307, Guatemala was required to follow all the 'strict
service of process procedures prescribed by' the statute.") (citations omitted) (emphasis in
Republic of Guatemala); Newkirk v. Clinomics Biosciences, Inc., No. 1:06-CV-0553 (GLS/RFT),

2006 WL 2355854, at *3 (N.D.N.Y. Aug. 15, 2006) (collecting cases for the proposition that "New
York courts have held that to acquire jurisdiction over an unauthorized foreign corporation,
plaintiffs must satisfy the strict service of process procedures prescribed by New York General
Business Law § 307").
In both New York and Maryland, a plaintiff may move for alternative service if service by
the enumerated means proves "impracticable." See N.Y. C.P.L.R. § 311(b) ("If service upon a
domestic or foreign corporation ... is impracticable under paragraph one of subdivision (a) of this

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section or any other law, service upon the corporation may be made in such manner ... as the
court, upon motion without notice, directs."); Md. R. Civ. P. Cir. Ct. 2-121 (b) (noting thatthe court
may order alternative service by mail to defondant's last known address and by personal delivery
to defendant's business when defendant has evaded service); id. (c) ("When proof is made by
affidavit.that good faith efforts to serve the defendant pursuant to section (a) of this Rule have not·
succeeded and that service pursuant to ·section (b) of this Rule is inapplicable or impracticable, the
court may order any other means of service that it deems appropriate in the circumstances and
reasonably calculated to give actual notice.").
Here, Plaintiff has not demonstrated that the Court's intervention is necessary yet. Plaintiff
has made one attempt to serve Defendant by personal service at a New York address found on
Defendant's website. 8 Delivery by Federal Express, though perhaps a courtesy, also does not meet
service of process requirements in either New York or Maryland. Plaintiff has not demonstrated
that service by another means, including the statutory method for serving a foreign corporation in
New York that is not authorized to do business in New York, is impracticable. Plaintiff has not
suggested that Defendant has attempted to evade service beyond failing to register in the states in
which Defendant does business. Nor has Plaintiff included an affidavit, required under the
Maryland Rules, demonstrating that failed good faith service attempts warrant alternative service.
Because Plaintiff has not demonstrated that serving Defendant is impracticable, the Court declines
to order service by alternative means at this time.

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The screenshots of Defendant's website attached to the motion do not include any specific
address and do not even·mention New York. See ECF 11-1.
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Though Plaintiff has not purported to do so, Plaintiff may also serve Defendant pursuant
to Federal Rule 4(±) in Singapore. Under this rule, a plaintiff may effect service on a foreign·
corporate defendant in a foreign country: ,
(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;
(2) if there is no internationally agreed means, or if an international agreement
allows. but does not specify other means, by a method that is reasonably calculated
to give notice:
(A) as prescribed by the foreign country's law for service in that country in
an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or letter
of request; or
(C) unless prohibited by the foreign country's law, by:
(ii) using any form of mail that the clerk addresses and sends to the
individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.
Fed. R. Civ. P. 4(±); see also_ Fed. R. Civ. P. 4(h)(2). "[I]n exercising the discretionary power
permitted by Rule 4(±)(3)," a district court "may require the plaintiff to show that they have
'reasonably attempted to effectuate service on defendant and that the circumstances are such that
the district court's intervention is necessary to obviate the need to undertake methods of
service that are unduly burdensome or that m:e untried but lik,ely futile."' FMAC Loan Receivables
v. Dagra, 228 F.R.D. 531, 534 (E.D. Va. 2005) (quoting Ryan v. Brunswick, 2002 WL 1628933, •

*2, 2002 U.S. Dist. LEXIS 13837, *7-8 (W.D.N.Y. 2002)). Because Plaintiff has not attempted
to serve process in Singapore, the Court declines to exercise its discretion to permit alternative
service under this rule.
III.

CONCLUSION

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For the foregoing reasons, Plaintiff's motion for alternative service is denied, without
prejudice. Should Plaintiff remain unable to serve Defendant through good faith. efforts under

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statutorily prescribed means, Plaintiff is welcome to again seek an order permitting alternative
service. A separate implementing Order will issue.

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Dated: May 9, 2024

Brendan A. Hurson
United ·States District Judge

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