FKA Distributing Co., LLC v. Yisi Technology Co., Ltd.

Filing 14

OPINION AND ORDER GRANTING PLAINTIFFS MOTION FOR PERMISSION TO SERVE DEFENDANT THROUGH ALTERNATIVE MEANS PURSUANT TO FED. R. CIV. P. 4(F)(3) 11 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FKA DISTRIBUTING COMPANY, LLC,
D/B/A HOMEDICS,
Case No. 17-cv-10226

Plaintiff,

UNITED STATES DISTRICT COURT
JUDGE
GERSHWIN A. DRAIN

v.
YISI TECHNOLOGY CO., LTD.,
Defendant
                                                                /

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR PERMISSION TO
SERVE DEFENDANT THROUGH ALTERNATIVE MEANS PURSUANT TO FED. R. CIV.
P. 4(F)(3) [11]
I. INTRODUCTION
Presently before the Court is Plaintiff’s Motion for Permission to Serve
Defendant Through Alternative Means Pursuant to Fed. R. Civ. P. 4(f)(3). Plaintiff
seeks to serve Defendant through electronic mail (“email”). For the reasons that
follow, the Court will grant Plaintiff’s Motion for Permission to Serve Defendant
Through Alternative Means Pursuant to Fed. R. Civ. P. 4(f)(3).
II. FACTUAL BACKGROUND
Plaintiff FKA Distributing Company, LLC (“Homedics”) filed a Complaint
against Yisi Technology Co., Ltd. (“Yisi Technology”) on January 24, 2017. See
-1 

Dkt. No. 1. Plaintiff issued a Summons that same day. See Dkt. No. 11, pg. 2 (Pg.
ID 35). Plaintiff emailed Defendant the Summons to the email address Plaintiff
found on Defendant’s website. Id. Defendant failed to respond, so Plaintiff
translated the documents and submitted them to China for service under the Hague
Service Convention on April 19, 2017. Id. Plaintiff failed to effect service on
Defendant and this Court dismissed the Complaint without prejudice on June 19,
2017. Dkt. No. 5, pg. 1–2. The Court then reopened the case on June 21, 2017. See
Dkt. No. 9. Plaintiff filed the current motion on August 30, 2017, requesting
permission to serve Defendant by email. See Dkt. No. 11. Plaintiff claims the
vendor who served the Summons for them stated that China has been taking up to
one year or more to process documents served under the Hague Convention. Dkt.
No. 11, pg. 2 (Pg. ID 35). Therefore, Plaintiff seeks an order allowing service by
email in order to prevent further delay of the service of process.
III. LEGAL STANDARD
Rule 4(h)(2) of the Federal Rules of Civil Procedure allows service of
process on a foreign business in the manner prescribed by Rule 4(f). Under Rule
4(f)(3), service is allowed “by other means not prohibited by international
agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). Therefore, service under
Rule 4(f)(3) is allowed if (1) directed by the Court; and (2) not prohibited by
international agreement. See Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007,
-2 

1014 (9th Cir. 2002). Service under this rule does not have to be a last resort, nor is
it only warranted in extraordinary circumstances. Id. at 1015–16.
The Eastern District of Michigan has allowed service by email when the
party to be served does business on the internet and through email, and when the
movant demonstrates that the email address in question is valid. See FenF, LLC v.
Ritacco, No. 16-cv-11097, 2016 WL 5235407, at *3 (E.D. Mich. Sept. 22, 2016);
Elcometer, Inc. v. TQC-USA, Inc., No. 12-cv-14628, 2013 WL 592660, at *3 (E.D.
Mich. Feb. 14, 2013); McCluskey v. Belford High Sch., No. 2:09-14345, 2010 WL
2696599, at *3 (E.D. Mich. June 24, 2010). Courts in this district and numerous
other federal courts have typically held that service by email comports with Due
Process if the above factors are met. See McCluskey, 2010 WL 2696599, at *3.
IV. DISCUSSION
Allowed by International Agreement
Federal Rule of Civil Procedure 4(f)(3) allows service by alternative means
on a foreign party if the service is allowed by international agreement. China and
the United States are both signatories to the Hague Convention. The Southern
District of New York holds that the Hague Convention does not prohibit service by
email to China. Sulzer Mixpac AG v. Medenstar Indus. Co. Ltd., 312 F.R.D. 329,
332 (S.D.N.Y. 2015) (holding that China’s objections to service by postal mail did
-3 

not extend to service in China via email, and allowed service by email to
defendants located in China). The Northern District of California has also held that
the Hague Convention does not prohibit service by email. See Williams-Sonoma
Inc. v. Friendfinder Inc., No. C 06-06572 JSW, 2007 WL 1140639, at *2 (N.D.
Cal. Apr. 17, 2007) (allowing service via email under the Hague Convention). In
conclusion, several courts have held that the Hague Convention allows service by
email.
Due Process and Validity of Email Address
To comport with Due Process, courts in the Eastern District of Michigan
have considered whether the party to be served via email does business via email,
and whether the movant has established that the email address in question is valid.
See FenF, LLC v. Ritacco, No. 16-cv-11097, 2016 WL 5235407, at *3 (E.D. Mich.
Sept. 22, 2016). Some ways to show the validity of an email address include:
providing the Court with declarations from individuals who received emails from
the email address in question, and demonstrating that emails mailed to the email
address in question were not returned as undeliverable or did not “bounce back.”
See id.; see also Popular Enters., LLC v. Webcom Media Group, Inc., 225 F.R.D.
560, 562 (E.D. Tenn. 2004). Here, the Plaintiff’s Exhibits B and C, attached to
their motion, show that Defendant lists two emails to contact them with—one for
customer service, and one for potential dealers of their product. Plaintiff emailed
-4 

Defendant the Summons and Complaint to the customer service email listed on its
website: [e-mail]. See Dkt. No. 11-2, pg. 2 (Pg. ID 43). The email did
not bounce back to Plaintiff. See Dkt. No. 11-2, pg. 2 (Pg. ID 43). This shows that
Defendant does conduct business via email and the email address in question is
valid. For these reasons, the email service comports with Due Process.
Delay in Service Under the Hague Convention
Lastly, Plaintiff contends that service by email is necessary because the
vendor who served the documents for Plaintiff stated that China has been taking up
to one year or more to process documents served under the Hague Convention.
Dkt. No. 11, pg. 2 (Pg. ID 35). The Court finds that this delay is accurate. See
Sulzer Mixpac AG v. Medenstar Indus Co., Ltd., 312 F.R.D. 329, 330 (S.D.N.Y.
2015) (finding that Plaintiff had been attempting service on Defendant in China
since March 30, 2015, and as of November 27, 2015, the Chinese Central
Authority had not effected service); Prof’l Investigating & Consulting Agency, Inc.
v. Suzuki, No. 2:11-cv-01025, 2014 WL 48260, at *1 (S.D. Ohio Jan. 7, 2014)
(finding that Plaintiff’s service package for Defendant under the Hague
Convention arrived at China’s Central Authority on September 14, 2012, and as of
January 7, 2014, the defendant had not received service).

-5 

V. CONCLUSION
For the reasons discussed herein, the Court will grant Plaintiff’s Motion for
Permission to Serve Defendant Through Alternative Means.
IT IS SO ORDERED.

s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: September 19, 2017

-6