Drew Technologies, Inc. v. Robert Bosch, L.L.C. et al

Filing 35

ORDER GRANTING 16 Defendant Robert Bosch LLC's Motion to Vacate the Court's April 25, 2013 Order; DENYING as moot 17 Defendant Bosch LLC's Motion for Accelerated Resolution. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DREW TECHNOLOGIES, INC.,
v.

Plaintiff,

Case No. 12-15622

ROBERT BOSCH, L.L.C., et al.,
Defendants.

HON. TERRENCE G. BERG
HON. MONA K. MAJZOUB
/

ORDER GRANTING DEFENDANT ROBERT BOSCH LLC’S
MOTION TO VACATE THE COURT’S APRIL 25, 2013 ORDER
On April 30, 2013, Defendant Robert Bosch LLC filed a motion to vacate the
order this Court issued on April 25, 2013, permitting alternative service of process
on Defendants Robert Bosch GmbH and Robert Bosch Engineering GmbH.
For the reasons set forth below, Defendant Robert Bosch LLC’s motion (Dkt. 16)
is GRANTED and it is hereby ORDERED that:
(1) The Court’s April 25, 2013 Order (Dkt. 14) is VACATED and any service
made under that order is QUASHED;
(2) Defendant Bosch LLC’s Motion for Accelerated Resolution (Dkt. 17) is
DENIED AS MOOT;
(3) Plaintiff may serve process on the German defendants as otherwise
permitted by the Federal Rules of Civil Procedure; and
(4) Plaintiff has until December 1, 2013, to effect domestic service upon
Defendants Bosch Engineering North America, Robert Bosch GmbH, and
Bosch Engineering GmbH, and the summonses issued on December 26, 2012,
will remain valid for that purpose until December 1, 2013. Alternatively, the
summonses will remain valid for international service until October 1, 2014.

I.

FACTUAL BACKGROUND

Plaintiff Drew Technologies has sued four “Bosch Entities” for patent
infringement. The Bosch Entities named in the complaint are Robert Bosch LLC
(“Bosch LLC”), Bosch Engineering North America, Robert Bosch GmbH, and Bosch
Engineering GmbH. (Dkt. 6.) The Complaint alleges Bosch LLC is a Delaware
corporation with its principal place of business in Farmington Hills, Michigan,
Bosch Engineering North America is a subsidiary of Bosch LLC operating in
Michigan, and both Robert Bosch GmbH and Bosch Engineering GmbH are German
companies with principal places of business in Germany. (Dkt. 6.)
In its amended answer, Bosch LLC admits that it is organized and exists under
the laws of Delaware. (Dkt. 15 at 2.) Bosch LLC denies that Bosch Engineering
North America is a subsidiary of Bosch LLC (Dkt. 15 at 3), and further states that it
does not believe Bosch Engineering North America even exists. (Dkt. 16 at 2 n.1.)
Bosch LLC claims it has no knowledge or information sufficient to admit or deny
that Robert Bosch GmbH and Bosch Engineering GmbH are German companies
with their principal places of businesses in Germany. (Dkt. 15 at 3.)
Plaintiff served Bosch LLC on March 22, 2013, but the registered agent for
Bosch LLC refused to accept service for any of the other Bosch Entities. (Dkt. 13 at
1.) On April 22, 2013, Plaintiff filed a motion seeking authorization to serve
Defendants Robert Bosch GmbH and Bosch Engineering GmbH under Federal Rule
of Civil Procedure 4(f)(3) through the related U.S. Defendants Robert Bosch LLC or
Bosch Engineering North America, or through Bosch’s U.S. Counsel. (Id.) The Court

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granted this motion on April 25, 2013. (Dkt. 14.) Defendant Bosch LLC moved for
reconsideration of the Court’s April 25, 2013 Order on April 30, 2013. (Dkt. 16.)
II.

STANDARD OF REVIEW

Bosch LLC styled its motion as one brought under Federal Rule of Civil
Procedure 59(e), and further titled it as a motion to vacate the prior order. “A court
may grant a Rule 59(e) motion to alter or amend if there is: (1) a clear error of law;
(2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a
need to prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620
(6th Cir. 2005) (citing GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834
(6th Cir. 1999)).
Under Local Rule 7.1, the Court may grant a motion for reconsideration if the
movant satisfactorily shows: (1) the existence of a palpable defect that misled the
parties and the Court; and (2) the correction of which would result in a different
disposition of the case. E.D. Mich. L.R. 7.1(h)(3). A defect is palpable if it is “obvious,
clear, unmistakable, manifest, or plain.” Olson v. Home Depot, 321 F. Supp. 2d 872,
874 (E.D. Mich. 2004). Further, the Court will not grant a motion for
reconsideration “that merely present[s] the same issues ruled upon by the court,
either expressly or by reasonable implication.” Id.
III.

ANALYSIS

Most of the arguments raised by Bosch LLC are unpersuasive. But because
Bosch LLC is correct that service on a corporation made under Rule 4(h)(2) and
4(f)(3) is plainly limited to service made outside of the United States, the Court will
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grant Bosch LLC’s motion and vacate the prior order. There is no need to address
Bosch LLC’s other arguments.1
A.

Court Ordered Service Under Rule 4(f)(3) May Be Effected Only
Outside of a Judicial District of the United States.
As the German defendants are both corporations, they must be served under

Rule 4(h), which provides:
Unless federal law provides otherwise or the defendant’s waiver has
been filed, a domestic or foreign corporation, or a partnership or other
unincorporated association that is subject to suit under a common
name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an
individual; or
(B) 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 law 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 defendant; or
(2) at a place not within any judicial district of the United States, in
any manner prescribed by Rule 4(f) for serving an individual,
except personal delivery under (f)(2)(C)(i).
Fed. R. Civ. P. 4(h) (emphasis added). It is clear that Rule 4(h)(2) may be used only
when the service will occur outside of the United States. It is equally clear that
service made under Rule 4(f) may be made only outside of the United States—
Unless federal law provides otherwise, an individual . . . may be served
at a place not within any judicial district of the United States:

Bosch LLC’s point that the Court did not previously have the benefit of Bosch LLC’s argument and
point of view is well taken. (Dkt. 16 at 2.) For that reason the Court does not treat any of Bosch
LLC’s arguments as arguments previously made. The Court does note, however, that motions for
alternative service are by their nature typically made as ex parte motions, and that Bosch LLC
seems in an unusual position, apparently authorized to advocate in this Court on behalf of the
German defendants but not to accept service on their behalf.

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(1) by any internationally agreed means of service . . . such as those
authorized by the Hague Convention . . . ;
(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:
i.

delivering a copy of the summons and of the complaint
to the individual personally; or

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(f) (emphasis added).
As the Plaintiff sought, and the Court issued, an order authorizing alternative
service under Rule 4(f)(3) that was to occur within the United States, that order
must be vacated—Court ordered service under Rule 4(f)(3) is clearly limited to
methods of service made outside of the United States.2
B.

Service Within the United States Under Other Provisions of the
Federal Rules of Civil Procedure.
For Plaintiff to serve process on the German defendants within the United

States, that service must be made under Rule 4(h)(1). Based on the information
contained in the pleadings, it may be possible to serve defendant Robert Bosch

The Court is of course aware of the several cases cited by Plaintiff, and others, where other courts
have authorized service within the United States under Rule 4(f)(3), including the Ninth Circuit in
Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1017 (9th Cir. 2002). But none of those
rulings are binding on this Court, and the Court is not aware of any binding authority that is
contrary to this determination. In the opinion of this Court, the plain language of the Rule is clear.
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GmbH under either Rule 4(h)(1)(A) or (B).3 (Dkts. 13, 13-3.)
As Chairman of Bosch LLC, Werner Struth is presumably at least occasionally
located within the United States. Struth is also listed as “a member of the board of
management[4] of Robert Bosch GmbH, headquartered in Stuttgart, Germany, with
responsibility for the region North and South America.”5 Robert Bosch GmbH
further identifies Struth as:
a Member of the Board of Management of Robert Bosch GmbH since
January 2012. In that capacity, he is responsible for North and South
America, manufacturing coordination, production system development,
investment planning, and environmental protection. He is also
responsible for Industrial Technology including the Packaging
Technology and Drive and Control Technology Divisions.
Corporate Responsibilities:
Industrial Technology
Manufacturing Coordination
Production System Development
Investment Planning
Environmental Protection
Divisions:
Packaging Technology
Drive and Control Technology
Regional Responsibilities:
North America
South America6

3 The Court has insufficient facts regarding Bosch Engineering GmbH as to whether that entity
might be served domestically. Bosch LLC notes that they are not aware of an entity known as Bosch
Engineering North America (Dkt. 16 at 2 n.1). Yet Bosch Engineering GmbH lists one of its
“locations” as “Bosch Engineering North America,” a division of Bosch LLC, Farmington Hills,
Michigan. http://www.bosch-engineering.de/en/de/ueber_uns/standorte/standorte_1.html
4

This is distinct from the “Supervisory Board.”

5

http://www.bosch.us/en/us/our_company_1/bosch_board_of_management_1/bosch_executives_north_america.html.

6

http://www.bosch.com/en/com/bosch_group/board_management/board_of_management.php.

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These listed responsibilities are likely adequate for Struth to be servable as an
“officer” or “managing or general agent” under Rule 4(h)(1)(B), an “officer” under
Michigan Court Rule 2.105(d)(1) as incorporated by Rule 4(h)(1)(A), and a “director .
. . or person in charge of an office or business establishment of the corporation”
under Michigan Court Rule 2.105(d)(2) as incorporated by Rule 4(h)(1)(A).
The Court notes that Bosch LLC denies that Struth is an “officer” of either Bosch
LLC or Bosch GmbH “for the purposes of Rule 4(h)(1)(B),” but Bosch LLC offered no
explanation for why that might be. (Dkt. 28 at 5 n.9.)7 Both the term “officer” and
the term “managing or general agent” are undefined in the rules, and many courts
have held that corporate employees with far less management responsibility than
Struth may be considered “officers” or “managing or general agents” of a
corporation. See, e.g., 4A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1103 (3d ed. 2002).
If the primary concern with service of process is ensuring adequate notice to
Robert Bosch GmbH, service upon “a Member of the Board of Management of
Robert Bosch GmbH” such as Struth would certainly satisfy this concern. “[T]he
Due Process Clause requires every method of service to provide ‘notice reasonably
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.’”

7

Though as Bosch LLC noted in its reply brief, that issue is not currently before the Court.

7

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707 (1988) (quoting
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).8

IV.

CONCLUSION

Defendant Robert Bosch LLC’s motion to vacate (Dkt. 16) the Court’s April 25
order is GRANTED, such that
(1) The Court’s April 25 Order (Dkt. 14) is VACATED and any service made
under that order is QUASHED;
(2) Defendant Bosch LLC’s Motion for Accelerated Resolution (Dkt. 17) is
DENIED AS MOOT;
(3) Plaintiff may serve process on the German defendants as otherwise
permitted by the Federal Rules of Civil Procedure; and
(4) Plaintiff has until December 1, 2013, to effect domestic service upon
Defendants Bosch Engineering North America, Robert Bosch GmbH, and
Bosch Engineering GmbH, and the summonses issued on December 26, 2012,
will remain valid for that purpose until December 1, 2013. Alternatively, the
summonses will remain valid for international service until October 1, 2014.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Dated: October 2, 2013

It is for this reason, and that Bosch LLC has not explained how alternative service would cause any
harm or prejudice to Robert Bosch GmbH, that further litigation over service of process is strongly
discouraged.

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Certificate of Service
I hereby certify that this Order was electronically submitted on October 2, 2013, using the
CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

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