ABC v. DEF

Filing 100

MEMORANDUM OPINION AND ORDER: It does not escape the Court that many requests by plaintiffs to serve a defendant in China by email are unopposed, as was the case here and in Sulzer. Indeed, Plaintiff's counsel's firm has filed approxim ately forty such requests in this district in 2022 alone, the majority of which appear to be wholly unopposed. See, e.g., Kelly Toys Holdings, Llc V. Children 777 Store et al., Case No. 1:22-cv-1857, Dkt No. 17 at 1719 (requesting to serve defend ants in China by email); The Pinkfong Company Inc. v. 7 Day Store et al., Case No. 1:22-cv-4133, Dkt. No. 17 at 1719 (same, using identical language); Mattel Inc. v. Agogo Store et al., Case No. 1:22-cv-2388, Dkt. No. 11 at 1719 (same, again using identical language). Thus, courts are unlikely to be alerted to authority that casts doubt on the propriety of their request for email service. In this case, it was not until YLILLY's reply brief shed light on the issue that the Court had an y notice that email service might not be permissible on defendants located in China. The Court acknowledges that the inability to serve defendants in China by email could present obstacles to bringing copyright and trademark enforcement actions ag ainst defendants who operate online storefronts from that country. The Court understands that service via the procedures outlined in the Hague Convention can be lengthy, and that there is little ability to monitor the progress of a request for ser vice to the Ministry of Justice. See In re Bibox Grp. Holdings Ltd. Sec. Litig., No. 20CV2807(DLC), 2020 WL 4586819, at *3 (S.D.N.Y. Aug. 10, 2020) commenting that service through the procedures in the Hague Convention poses the risk of significa nt delay and that plaintiffs would be unable to check the status of their request). Moreover, the Court agrees that the goal of prosecuting copyright and trademark infringement abroad is a noble one. However, the Court may not ignore the text of R ule 4(f), the Hague Convention, and Chinese law in order to make service more efficient for Plaintiff. Nor may the Court ignore the implications of the Supreme Court's decisions in Water Splash and Schlunk. Rather, the Court is bound to those precedential and textual strictures. Indeed, [t]hose rules are mandatory, and... 'the systemic comity interests embodied in the Service Convention' shouldn't be sacrificed in the name of 'concrete case management concerns.' ; See Facebook, 480 F. Supp. 3d at 987 (quoting Maggie Gardner, Parochial Procedure, 69 Stan. L. Rev. 941, 1000 (2017) (footnote omitted)). For the reasons stated, Plaintiff's motion for default judgment is denied. (Signed by Judge Gregory H. Woods on 7/21/2022) (rro)

Case 1:21-cv-05860-GHW Document 100 Filed 07/21/22 Page 1 of 28
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
UNITED STATES DISTRICT COURT
DATE FILED: 7/21/2022
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
SMART STUDY CO., LTD.,
:
:
:
:
Plaintiff,
:
:
-against:
:
ACUTEYE-US, APZNOE-US,
:
BEIJINGKANGXINTANGSHANGMAOYOUXIAN :
GONGSI, BLUE VIVI, BONUSWEN,
:
CHANGGESHANGMAOYOUXIANGONGSI,
:
CITIHOMY, CKYPEE, DAFA INTERNATIONAL, :
DAZZPARTY, FAMING, GEGEONLY, HAITING$, :
:
HAOCHENG-TRADE, HAPPY PARTY-001,
HEARTLAND GO, HUIBI-US, JOYSAIL, JYOKER- :
1:21-cv-5860-GHW
US1, KANGXINSHENG1, LADYBEETLE, LICHE :
CUPCAKE STAND, LVYUN, MARY GOOD SHOP, :
MEMORANDUM
NA-AMZ001, NAGIWART, NUOTING, QINGSHU, :
OPINION AND ORDER
:
QT-US, SALIMHIB-US, SAM CLAYTONDDG,
:
SENSIAMZ BACKDROP,
SHENZHENSHIXINDAJIXIEYOUXIANGONGSI, :
:
SMASSY US, SMSCHHX, SUJIUMAISUSU,
SUNNYLIFYAU, TELIKE, THEGUARD,
:
TONGMUMY, TOPIVOT, TUOYI TOYS, UNE
:
PETITE MOUETTE, WCH- US, WEN MIKE,
:
WONDERFUL MEMORIES, WOW GIFT,
XUANNINGSHANGWU, XUEHUA INC, XUIYUI7I, :
:
YAMMO202, YICHENY US,
YONGCHUNCHENGQINGMAOYIYOUXIANGON :
:
GSI, YOOFLY, ZINGON US and 老兵俱乐部,
:
:
:
Defendants.
:
------------------------------------------------------------------------X
GREGORY H. WOODS, United States District Judge:
Plaintiff Smart Study Co., Ltd. owns multiple federal trademark and copyright registrations
associated with the hit song “Baby Shark.” Plaintiff asserts that the defendants in this case, all of
which are located in China, marketed and sold counterfeit Baby Shark products via their e-

Case 1:21-cv-05860-GHW Document 100 Filed 07/21/22 Page 2 of 28

commerce storefronts on Amazon.com. Plaintiff purported to serve the defendants by email
pursuant to Federal Rule of Civil Procedure 4(f).
After a number of those defendants failed to respond timely to Plaintiff’s complaint,
Plaintiff moved for default judgment. Because the Court determines that service by email on
individuals or entities located in China is not permitted under the Convention on the Service
Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Hague
Convention” or the “Convention”) or the Federal Rules of Civil Procedure, the defendants were
not properly served in this action. Accordingly, the Court lacks personal jurisdiction over those
defendants, and Plaintiff’s motion for default judgment is denied.
I.

BACKGROUND
a. Factual Background
Plaintiff is a “global entertainment company specializing in developing animated gaming

content to deliver high-quality entertainment.” Memorandum in Support of Default Judgment,
Dkt. No. 79 (“Mem.”) at 1; see also Complaint, Dkt. No. 4 (“Compl.”) ¶ 7. Plaintiff’s “preschool
band,” Pinkfong, produces modern-day songs and stories for children. Compl. ¶ 8. One of
Pinkfong’s “most successful” songs is “Baby Shark.” Id. ¶ 9. Plaintiff owns multiple federal
trademark and copyright registrations related to the Baby Shark products. Id. ¶ 13.
“Baby Shark” proved to be quite the earworm. It debuted at No. 32 on the Billboard Hot
100 Chart and had amassed nearly 8.8 billion views as of July 7, 2021. Id. ¶ 9–10. Plaintiff
“developed and initiated an extensive worldwide licensing program” for consumer products
related or associated with the Baby Shark concept. Id. ¶ 10. Baby Shark products, including toys,
sound books, and t-shirts, are sold through Pinkfong’s website, as well as throughout major
retailers and online marketplaces, such as Walmart, Target, and Amazon. Id. ¶ 11.

2

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The defendants in this case 1 are third-party merchants with user accounts that operate
merchant storefronts on websites including Amazon.com, the worldwide e-commerce and digital
retail marketplace. Id. ¶¶ 26–27. Plaintiff asserts that the defendants “manufactur[e], import[],
export [], advertis[e], market[], promot[e], distribut[e], display[], offer[] for sale and/or sell[]”
counterfeit Baby Shark products to consumers in the United States. Id. ¶ 35. All of the
defendants are located in China. Id. ¶ 30.
a. Procedural History
On July 6, 2021, Plaintiff filed a complaint under seal, asserting claims for violations of the
Lanham Act, 15 U.S.C. § 1051 et seq., United States copyright law, 17 U.S.C. § 501, and unfair
competition under New York common law. See generally Compl. Two days later, following a
playbook regularly utilized by Plaintiff’s counsel, Plaintiff filed an application for a temporary
restraining order (“TRO”), as well as an order to show cause as to why a preliminary injunction
should not be issued, an order to freeze the defendants’ assets that could be used to satisfy an
equitable accounting in Plaintiff’s favor, an order authorizing expedited discovery, and—as is most
relevant here—an order authorizing bifurcated and alternative service. See generally Dkt. No. 10
(“TRO Application”). The request for an order authorizing bifurcated and alternative service
sought to serve the defendants by email pursuant to Federal Rule of Civil Procedure 4(f)(3). See
Dkt. No. 11 (“TRO Mem.”) 21–23. Specifically, Plaintiff requested to deliver to the defendants’
email addresses—which were to be identified by Amazon.com—PDF copies of the Court’s TRO
order together with the Summons and Complaint, as well as a link to a secure website where the

The defendants consist of Acuteye-Us, Apznoe-Us, Beijingkangxintangshangmaoyouxiangongsi, Blue Vivi,
Bonuswen, Changgeshangmaoyouxiangongsi, Citihomy, Ckypee, Dafa International, Dazzparty, Faming, Gegeonly,
Haiting$, Haocheng-Trade, Happy Party-001, Heartland Go, Huibi-Us, Joysail, Jyoker-Us1, Kangxinsheng1,
Ladybeetle, Liche Cupcake Stand, Lvyun, Mary Good Shop, Na-Amz001, Nagiwart, Nuoting, Qingshu, Qt-Us,
Salimhib-Us, Sam Claytonddg, Sensiamz Backdrop, Shenzhenshixindajixieyouxiangongsi, Smassy Us, Smschhx,
Sujiumaisusu, Sunnylifyau, Telike, Theguard, Tongmumy, Topivot, Tuoyi Toys, Une Petite Mouette, Wch- Us, Wen
Mike, Wonderful Memories, Wow Gift, Xuanningshangwu, Xuehua Inc, Xuiyui7i, Yammo202, Yicheny Us,
Yongchunchengqingmaoyiyouxiangongsi, Yoofly, Zingon Us, and 老兵俱乐部 (collectively, “Defendants”).

1

3

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defendant could download PDF copies of the Court’s order, the summons, and the complaint, and
all papers filed in support of Plaintiff’s TRO application. Dkt. No. 10 (“Proposed TRO”) §§ IV(A),
V(C).
The grounds for Plaintiff’s request, as laid out in its memorandum in support, were only
that courts have discretion to order service by electronic means as a valid means of alternative
service under Federal Rule of Civil Procedure 4(f)(3). TRO Mem. at 22. Plaintiff cited Sulzer
Mixpac AG v. Medenstar Industries, Co., 312 F.R.D. 329, 330 (S.D.N.Y. 2015) in support of its
position. Id. Plaintiff mentioned the Hague Convention only once (and in a footnote) arguing first
that the Hague Convention did not apply at all in this case, and even if it did, “service by email is
not prohibited by any international agreement” for defendants located in China. Id. at 22 n.15.
Plaintiff did not cite any out-of-district cases that conclude that service by email on defendants in
China is prohibited. As will be discussed, there are many such cases.
On July 9, 2022, the Court granted Plaintiff’s requested relief and authorized Plaintiff to
serve the defendants by email pursuant to Federal Rule of Civil Procedure 4(f)(3), which—as will
be discussed in detail—permits service “by other means not prohibited by international agreement,
as the Court orders.” See Dkt. No. 14; see also Fed. R. Civ. P. 4(f)(3). Specifically, the Court allowed
Plaintiff to email copies of the Court’s order, the Summons, and the Complaint to email addresses
associated with the defendants’ user accounts and merchant storefronts on Amazon.com. See Id.
§ IV. On July 22, 2021, Plaintiff emailed those documents to all but one of the defendants. 2 Dkt.
No. 17.
On July 30, 2022, the Court held a hearing on Plaintiff’s motion for a preliminary
injunction. The Court ordered that the injunctive relief previously granted in the TRO would
remain in place pending the final hearing and decision of this action or until further order of this

2

Defendant WOW GIFT was served on August 3, 2021. Id.

4

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Court. Dkt. No. 16.
In October 2021, former defendants YLILLY and Topivot filed motions to dissolve the
preliminary injunction. Dkt. Nos. 23, 26. In Topivot’s reply brief, Topivot raised the argument
that the Court lacked personal jurisdiction over Topivot because service via email on Chinese
defendants was not permissible under the Hague Convention, and thus was not permissible under
Federal Rule of Civil Procedure 4(f). See Dkt. No. 50 at 1–13.
The Court held oral argument on Topivot’s motion on December 21, 2021. At oral
argument, Plaintiff’s counsel admitted that the “[t]he Hague Convention applie[d]” to the service
of defendants in this case because they are “Chinese defendants”—thus contravening their
previous argument that the Hague Convention did not apply at all. See Dkt. No. 71 (“Hearing
Trans.”) at 8:3–9. Plaintiff’s counsel then argued that the “Hague Convention does not prevent
service by electronic mail according to the Sulzer Mixpac case Judge Rakoff decided in this court.”
Id. But when the Court asked Plaintiff’s counsel to respond to the many cases that have come to
the opposite conclusion and determined that service by email on Defendants located in China is
not permitted, Plaintiff’s counsel did not directly respond. Instead, counsel apologized for “not
having researched” the issue. Id. 19:24–20:13. Moreover, when the Court asked Plaintiff’s
counsel to address the Supreme Court’s decision in Water Splash, Inc. v. Menon, 137 S. Ct. 1504,
1505 (2017)—which, as will be discussed, has critical implications for the service of foreign
defendants under the Hague Convention—Plaintiff’s counsel stated that they were “unaware of
the Water Splash decision” (which had been decided more than four years before the December 17,
2021 hearing) and needed the “opportunity to review it.” See Hearing Trans. 11:17–12:10.
After oral argument on Topivot’s motion, Plaintiff voluntarily dismissed both YLILLY
and Topivot from this action. 3 See Dkt. Nos. 67, 69. But the bell had already been rung.
Plaintiff also voluntarily dismissed this action against numerous other defendants from this action. See Dkt. Nos. 20,
35, 82, 84.
3

5

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The remaining defendants did not respond to Plaintiff’s complaint by the deadline
established in Federal Rule of Civil Procedure 12. Thus, on December 21, 2021, the Clerk of Court
issued a certificate of default as to the remaining defendants. Dkt. No. 62. On February 11, 2022,
Plaintiff filed a motion for default judgment and supporting papers against the remaining
defendants. Dkt. Nos. 77–80. In that motion, Plaintiff again changed tack. Instead of arguing that
the defendants had been properly served only pursuant to Federal Rule of Civil Procedure 4(f)(3),
Plaintiff instead argued that the defendants had been properly served under either Federal Rule of
Civil Procedure 4(f)(2)—which, as is discussed in more detail herein, permits service by “a method
reasonably calculated to give notice . . . unless prohibited by the foreign country’s law,” and Rule
4(f)(3). Mem. at 6–8.
As to service under Rule 4(f)(2), Plaintiff argued that Article 87 of the Civil Procedure Law
of the People’s Republic of China (“Article 87”) permitted defendants to be served via email
“subject to [the defendant’s] consent.” Id. at 7. But the translation of Article 87 provided by the
Plaintiff clearly stated that “the People’s court may serve litigation documents by . . . email.” Dkt.
No. 78-7 at 3. There was no dispute that Plaintiff’s counsel, and not a “People’s court” had
attempted to serve the documents. Thus, the Court was left with questions as to whether service
by email was appropriate under Chinese law.
Therefore, on March 1, 2022, the Court sought the disinterested legal advice of Professor
Benjamin Liebman, the Robert L. Lieff Professor of Law and Director of Columbia Law School’s
Hong Yen Chang Center for Chinese Legal Studies, regarding whether service via email by foreign
litigants on individuals located in China was prohibited by the laws of the People’s Republic of
China. Dkt. No. 81. Professor Liebman, along with Geoffrey Sant, a partner and co-chair of
Pillbury Winthrop Shaw Pittman LLP’s China Practice, provided an amicus brief responding to that
question. See Brief Of Amici Curiae On Service By Electronic Means On Chinese Residents Under Chinese
Law, Dkt. No. 94 (“Amicus Brief”). Plaintiff submitted a declaration from Mr. Richard K. Wagner,
6

Case 1:21-cv-05860-GHW Document 100 Filed 07/21/22 Page 7 of 28

who is Of Counsel at international law firm Allen & Overy in Hong Kong, responding to that
amicus brief. See Declaration of Richard K. Wagner, Dkt. No. 98 (“Wagner Decl.”). Notably, Mr.
Wagner’s submission contradicted Plaintiff’s argument that service was permissible under Article
87; instead, he noted that Article 87 “was most applicable to situations where the general service
rules [for domestic service in China] govern” and “not to foreign-related/international cases such
as that presented by the fact pattern here.” Id. ¶ 20.
Professor Liebman and Mr. Sant also filed an amended letter on July 1, 2022 that included
recently available information pertaining to the Court’s question. Dkt. No. 99 (“July 1 Letter”).
II.

LEGAL STANDARD
“When a party against whom a judgment for affirmative relief is sought has failed to plead

or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the
party’s default.” Fed. R. Civ. P. 55(a). In evaluating a motion for default judgment, the Court
“accept[s] all of the [plaintiff’s] factual allegations as true and draw[s] all reasonable inferences in its
favor.” Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). Nevertheless, the Court is required to
determine whether Plaintiff’s allegations establish liability as a matter of law, see id., and it “has
discretion under Rule 55(b)(2) once a default is determined to require proof of necessary facts and
need not agree that the alleged facts constitute a valid cause of action.” Au Bon Pain Corp. v. Artect,
Inc., 653 F.2d 61, 65 (2d Cir. 1981) (citation omitted).
“[B]efore a court grants a motion for default judgment, it may first assure itself that it has
personal jurisdiction over the defendant.” Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619
F.3d 207, 213 (2d Cir. 2010). And “[b]efore a federal court may exercise personal jurisdiction over
a defendant, the procedural requirement of service of summons must be satisfied.” Omni Capital
Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987); Dynegy
Midstream Servs. v. Trammochem, 451 F.3d 89, 94 (2d Cir. 2006) (same). “The plaintiffs bear the
burden of proving that service was adequate.” Lopez v. Yossi’s Heimishe Bakery Inc., 2015 WL
7

Case 1:21-cv-05860-GHW Document 100 Filed 07/21/22 Page 8 of 28

1469619, at *4 (E.D.N.Y. Mar. 30, 2015); Chen v. Best Miyako Sushi Corp., No. 16CV2012JGKBCM,
2021 WL 707273, at *8 (S.D.N.Y. Feb. 1, 2021), report and recommendation adopted sub nom. Shiqiu Chen
v. Best Miyako Sushi Corp., No. 16-CV-2012 (JGK), 2021 WL 706412 (S.D.N.Y. Feb. 19, 2021)
(same).
III.

DISCUSSION
a. The Court Lacks Personal Jurisdiction over the Defaulting Defendants
The Court lacks personal jurisdiction over the defaulting defendants. In this case, the

defendants are located in the People’s Republic of China. Compl. ¶ 30. Both China and the
United States are parties to the Hague Convention which seeks to “simplify, standardize, and
generally improve the process of serving documents abroad.” Water Splash, Inc. v. Menon, 137 S. Ct.
1504, 1505 (2017); see also, The World Organisation for Cross-border Co-operation in Civil and
Commercial Matters, HCCH Members, https://www.hcch.net/en/states/ hcch-members (last
visited July 20, 2022) (listing both the United States and China as parties to the Convention).
“[C]ompliance with the Convention is mandatory in all cases to which it applies.”
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988). Here, because the defendants
are located in China, a party to the Convention, the Hague Convention applies. “As both the
United States and China are signatories to the Hague Convention, that pact governs service of
process by transmittal of documents abroad in this case.” Kiss Nail Prod., Inc. v. Shenzhen Jinri Elec.
Appliance Co., No. CV185625PKCAYS, 2020 WL 4679631, at *3 (E.D.N.Y. July 23, 2020), report
and recommendation adopted, No. 18CV5625PKCAYS, 2020 WL 4676415 (E.D.N.Y. Aug. 12,
2020); see also Hague Convention art. 1 (“The present Convention shall apply in all cases, in civil or
commercial matters, where there is occasion to transmit a judicial or extrajudicial document for
service abroad.”); Fed. R. Civ. P. 4 advisory committee’s note (“Use of the Convention procedures,
when available, is mandatory if documents must be transmitted abroad to effect service.”).

8

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i. Rule 4(f)
Rule 4(f) gives effect to the Hague Convention and its exceptions. The rule has three
subsections, and provides the following:
Unless federal law provides otherwise, an individual . . . may be served at a place not
within any judicial district of the United States:
(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:
(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.
Paragraph 1 “gives effect to the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents.” 4B Charles A. Wright, Arthur R. Miller & Adam N. Steinman, Federal
Practice and Procedure § 1133 (4th ed. April 2020 update). Paragraph 2 “provides options to the
party serving process when internationally agreed process methods are not intended to be exclusive
or when no international agreement is applicable, as would be true, for example, when service is to
be made in a nation that is not a signatory to the Hague Convention.” Id. And paragraph 3

9

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“authorizes the district court to approve other methods of service not prohibited by international
agreements.” Id.
To serve Defendants pursuant to Rule 4(f)(1), then, Plaintiff would have been required to
follow the procedures expressly laid out in the Hague Convention. Plaintiff did not attempt service
pursuant to the methods laid out in the Hague Convention; instead, it sought a Court’s order
permitting service pursuant to Rule 4(f)(3), and later asserted that Defendants were also properly
served pursuant to Rule 4(f)(2). As discussed herein, Plaintiff is incorrect on both counts.
1. The Hague Convention Applies to All Defendants
As an initial matter, Plaintiff claims that the Hague Convention does not apply to eleven
defendants whose addresses could not be readily found on their virtual storefronts. See Mem. at 4–
5. “The Hague Convention does not apply ‘where the address of the person to be served with the
document is not known.’” Advanced Access Content Sys. Licensing Adm’r, LLC v. Shen, No. 14-CV1112 (VSB), 2018 WL 4757939, at *4 (S.D.N.Y. Sept. 30, 2018) (citing Hague Convention art. 1).
“Courts in this Circuit have found that an address is ‘not known’ if the plaintiff exercised
reasonable diligence in attempting to discover a physical address for service of process and was
unsuccessful in doing so.” Id. (collecting cases).
Cases in which plaintiffs have been found to have exercised reasonable diligence to discover
a physical address include where the plaintiff “researched [defendant’s] websites associated with
[defendant’s] [d]omain [n]ames, completed multiple Internet-based searched, called known phone
numbers, and conducted in-person visits,” id., where the plaintiff performed “extensive
investigation and [issued] subpoenas to the relevant domain registrars and email providers,”
Microsoft Corp. v. Does 1-2, No. 20CV1217LDHRER, 2021 WL 4755518, at *3 (E.D.N.Y. May 28,
2021), report and recommendation adopted, No. 20CV1217LDHRER, 2021 WL 4260665
(E.D.N.Y. Sept. 20, 2021), and where a plaintiff has “attempted to obtain [the defendant’s] address
in a variety of ways,” Prediction Co. v. Rajgarhia, No. 09 Civ. 7459(SAS), 2010 WL 1050307, at *2
10

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(S.D.N.Y. Mar. 22, 2010).
Here, Plaintiff has not demonstrated that it used reasonable diligence to determine the
defendants’ physical addresses. Plaintiff alleges only that “upon review of Defendants’ Merchant
Storefronts . . . [Plaintiff’s counsel] discovered that . . . eleven (11) of the Defaulting
Defendants . . . displayed a partial, incomplete and/or false address.” 4 Mem. 4–5. According to
Plaintiff, the only investigation done into the defendants’ physical address in the twelve months
since this action was filed was a mere perusal of a defendant’s storefront—Plaintiffs do not claim
that they sought information from Amazon regarding the defendants’ addresses, nor do they claim
to have taken any additional steps to determine the defendants’ addresses. As the cases cited above
demonstrate, more is required to establish “reasonable diligence” in searching for the defendants’
physical addresses. See Luxottica Grp. S.p.A. v. Partnerships & Unincorporated Associations Identified on
Schedule “A”, 391 F. Supp. 3d 816, 825 (N.D. Ill. 2019) (determining that the plaintiff had not
conducted a reasonable search for defendant’s addresses where the plaintiff summarily asserted that
a website would be unlikely to provide its users addresses).
Accordingly, all of the defendants are subject to the Hague Convention, including those
defendants whose physical addresses could not readily be ascertained from their merchant
storefronts.
2. Service Was Not Proper Under Rule 4(f)(3)
The defendants in this case were not properly served pursuant to Federal Rule of Procedure
4(f)(3). 5 Rule 4(f)(3) allows litigants in the United States serve an individual or entity outside of the

Those defendants are Acuteye-US, Dazzparty, Joysail, NA-AMZ001, nuoting, Sensiamz Backdrop, SMSCHHX,
tongmumy, WEN MIKE, WOW GIFT and XueHua INC. Plaintiff voluntarily dismissed XueHua Inc. from this case
after filing its motion for default judgment. Dkt. No. 83.

4

In the Court’s July 9, 2021 order granting Plaintiff’s request for a temporary restraining order, the Court authorized
service under Rule 4(f)(3). Dkt. No. 14 § IV(A). The Court should not have done so. As discussed herein, service is
not permissible under Rule 4(f)(3) in this case. The Court’s previous decision was decided in a vacuum—as discussed,
Plaintiff’s application for a TRO was not opposed, and Plaintiff wholly failed to bring to the Court’s attention any
5

11

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United States “by other means not prohibited by international agreement.” Fed. R. Civ. P. 4(f)(3).
“The decision whether to allow alternative methods of serving process under Rule 4(f)(3) is
committed to the sound discretion of the district court.” Madu, Edozie & Madu, P.C. v. SocketWorks
Ltd. Nigeria, 265 F.R.D. 106, 115 (S.D.N.Y.2010) (internal quotation marks omitted).

“In

exercising its discretion, the court should look at the case-specific record before it.” Baliga on behalf
of Link Motion Inc. v. Link Motion Inc., No. 18CV11642 (VM) (DF), 2020 WL 5350271, at *9
(S.D.N.Y. Sept. 4, 2020); In re GLG Life Tech Corp. Sec. Litig., 287 F.R.D. 262, 266 (“Inasmuch as
Rule 4(f)(3) calls upon a court to exercise its discretion [ ], each case must be judged on its facts”). 6
Thus, service by a method that is prohibited by international agreement is impermissible
under Rule 4(f)(3). And here, service by email on defendants located in China is not permitted
under the Hague Convention.
The Hague Convention permits service by multiple methods. “First, an applicant can send
a request for service to a receiving country’s central authority, an entity that every signatory to the
Convention must establish.” Facebook, Inc. v. 9 Xiu Network (Shenzhen) Tech. Co., 480 F. Supp. 3d
977, 980 (N.D. Cal. 2020); see also Hague Convention, arts. 2–7. “The central authority must

precedent that had determined that service under the Hague Convention was not permitted. It was not until the Court
received YLILLY’s briefing on its motion to dissolve the preliminary injunction that the Court was clued into the issue
of the propriety of service by email on defendants located in China. Now, with the aid of YLILLY’s briefing, oral
argument, and the input of experts in Chinese law, the Court has more fulsomely considered the issue and realizes that
its previous order was in error.
6 The Court briefly notes that courts in this district disagree regarding whether a Plaintiff must attempt service pursuant
to Rule 4(f)(1) or 4(f)(2) prior to attempting service pursuant to Rule 4(f)(3). For instance, in Shanghai Zhenglang Tech.
Co. v. Mengku Tech. Co., the Court reasoned
[P]laintiff initiated this action on October 30, 2020 and moved this Court to authorize alternative service
by email eleven days later on November 10, 2020. Based on Plaintiff's submissions, and the short time
between the filing of this complaint and the present motion, the Court is unable to conclude that
Plaintiff has made the threshold showing required by courts in this Circuit. Specifically, Plaintiff has
failed to demonstrate that it ‘reasonably attempted to effectuate service on the defendant,’ such as
through the Hague Service Convention to which China is a signatory Plaintiff.
No. 20-CV-5209(JS)(ARL), 2020 WL 13280555, at *2 (E.D.N.Y. Nov. 18, 2020). By contrast, in Halvorssen v. Simpson,
328 F.R.D. 30, 34 (E.D.N.Y. 2018), the court determined that “there is no legal requirement that service be attempted
under the Hague Convention prior to seeking an order of alternative service under Rule 4(f)(3).”

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attempt to serve the defendant by a method that is compatible with the receiving country’s
domestic laws, and then provide the applicant with a certificate either confirming that service was
successful or listing the reasons that prevented service.” See Facebook, 480 F. Supp. 3d at 980;
Hague Convention, arts. 2–7.
“Second, the Convention permits alternative methods of service unless the receiving
country objects.” See Facebook, 480 F. Supp. 3d at 980; Hague Convention, arts. 8–10.
“These methods include service by diplomatic and consular agents, service through consular
channels, service on judicial officers in the receiving country, and direct service ‘by postal
channels.’” See Facebook, 480 F. Supp. 3d at 980; Hague Convention, arts. 8–10. China has
specifically objected to service “by postal channels.” See China – Central Authority & Practical
Information, Hague Conference on Private Int’l Law, https://www.hcch.net/en/states/en/states
/authorities/details3/?aid=243 (last visited July 20, 2022). Thus, there is no dispute that litigants
located in China may not be served via postal mail. “Email,” however, is not mentioned anywhere
in the Convention, which long predates the advent of email. The question is whether or not the
lacuna of the Hague Convention means that service by email is permitted or prohibited by the
Convention.
3.

Service by Email on Litigants in China is Prohibited by the
Hague Convention

Here, the Court concludes that service via email on litigants located in China is not
permitted by the Hague Convention. See, e.g., Facebook, 480 F. Supp. 3d at 978 (concluding that
service by email was not proper); Prem Sales, LLC v. Guangdong Chigo Heating & Ventilation Equip.
Co., 494 F. Supp. 3d 404, 417 (N.D. Tex. 2020) (same); Luxottica, 391 F. Supp. 3d at 825 (same). As
numerous courts have recognized, binding Supreme Court precedent indicates that the Hague
Convention outlines specific methods of service, and that methods of service that are not
specifically authorized are impermissible under the Convention. See, e.g., Anova Applied Elecs., Inc. v.
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Hong King Grp., Ltd., 334 F.R.D. 465, 472 (D. Mass. 2020) (“To permit service by e-mail would
bypass the means of service set forth in the Convention.”); CRS Recovery, Inc. v. Laxton, No. C 067093 CW, 2008 WL 11383537, at *2 (N.D. Cal. Jan. 8, 2008) (“An order allowing email service on a
defendant located in China would contravene the treaty, and is not permitted under Rule 4(f)(3).”).
In Water Splash, the Supreme Court considered whether Article 10(a) of the Convention,
which provides that the Convention “shall not interfere with . . . the freedom to send judicial
documents, by postal channel, directly to persons abroad,” permitted service of judicial documents
via postal mail. 137 S. Ct. at 1508. Prior to Water Splash, circuits were split as to whether Article
10(a) permitted service of judicial documents by postal mail, disagreeing over whether Article
10(a)’s text reference to “sending” documents—rather than “serving” documents—was intended to
indicate that service by postal mail was permissible. Id. After analyzing Convention’s text and
structure, the Supreme Court concluded that the Convention permits service of judicial documents
by mail unless a country lodges an objection to Article 10(a). Id. at 1513.
In reaching that conclusion, the Supreme Court reiterated that “the Hague Service
Convention specifies certain approved methods of service and ‘pre-empts inconsistent methods of
service’ wherever it applies.” Id. (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694,
699 (1988)). In other words, Water Splash indicated that the only permissible methods of service
were those “specified” in the Convention.
Water Splash relied on the Supreme Court’s previous decision in Schlunk. 7 In Schlunk, the
Supreme Court held that the “Convention is mandatory in all cases to which it applies.” 486 U.S. at
705. Thus, where a country is a signatory to the Hague Convention, and where service of a party in
That case concerned whether compliance with the Hague Convention was required when serving a domestic
subsidiary of a foreign corporation. See generally id. The Court held that where a country’s laws would ordinarily require
documents to be transmitted to a foreign country, then the party serving judicial documents must ensure that those
documents are served by a method prescribed in the Hague Convention. Id. The appellant had argued that relying on
the serving parties’ country’s laws to determine when documents needed to be transmitted overseas would permit
countries to create laws that omitted any requirement that documents be transmitted overseas, allowing those countries
to avoid service pursuant to the Hague Convention. Id. at 702–703.

7

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that country would require the transmission of documents abroad, a party must follow the dictates
of the Convention. And as the Supreme Court acknowledged, “the first stated purpose of the
Convention is ‘to create’ appropriate means for service abroad,” adding that “[t]he Convention
provides simple and certain means by which to serve process on a foreign national.” Id. at 705–06.
Water Splash and Schlunk do not expressly state whether service via email—especially for a
country that has objected to Article 10(a)—is a permitted under the Convention. But their logic is
clear: the Convention is meant to outline—to “create”—specific methods of service in order to
provide “simple and certain means” that may be used to serve individual in a foreign country.
As stated, email is nowhere mentioned in the Convention. Email’s absence in the
Convention leaves the Court with two questions: (1) whether email is a permissible method of
service under the Convention in general; and (2) if so, whether email is a permissible method of
service where a country has objected to service by “postal channels.”
The Court need not answer the first question because, even assuming it to be true, China
has objected to service by postal channels. Nevertheless, the Court acknowledges that some courts
have determined that service via email, regardless of a country’s objections, is precluded under the
Hague Convention. See Anova, 334 F.R.D. at 471–72 (concluding that “e-mail service on
defendants is prohibited by the Hague Convention.”); Topstone Commc’ns, Inc. v. Xu, No. 4:22-CV00048, 2022 WL 1569722, at *4 (S.D. Tex. May 18, 2022) (‘[E]mail service is not permitted under
the Convention because it is inconsistent with and not authorized by the Convention’s delineated
service methods.”); Prem Sales, LLC, 494 F. Supp. 3d at 417 (same).
Again, the Court need not determine whether it agrees with that position here, given
China’s objection to Article 10(a). But the Court notes that Articles 11 and 19 of the Convention
provide some support to the wholesale preclusion of email as a method of service. “Article 11
provides that any two states can agree to methods of service not otherwise specified in the
Convention,” and “Article 19 clarifies that the Convention does not preempt any internal laws of
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its signatories that permit service from abroad via methods not otherwise allowed by the
Convention.” Water Splash, 137 S.Ct. at 1508. “What both these articles have in common is that
they leave countries free to consent, either unilaterally or together, to means of service that are not
specifically authorized by the Convention.” Anova, 334 F.R.D. at 471. In other words, Articles 11
and 19 provide ready tools to permit countries to expressly permit service by email. And those
articles would be largely superfluous if litigants could serve a party in another country merely by
selecting a method that is not expressly listed in the Hague Convention—there would be no need
for articles that permit countries to agree to other methods of service, or to legislate to affirmatively
authorize other methods of services.
Without deciding that question, the Court turns to whether service by email is permitted for
countries that have objected to service via postal channels. Some courts have concluded that
service “by postal channels” encompasses service by email, such that service by email is permissible
under the Convention. See e.g., Agha v. Jacobs, No. C 07-1800 RS, 2008 WL 2051061, at *2 (N.D.
Cal. May 13, 2008) (“Agha’s attempt to distinguish email and facsimile from the ‘postal channels’
referred to in the text of Article 10 is unavailing.”). If that is the case, however, it must be true that
China’s objection to service via “postal channels” would necessarily encompass an objection to
service via email. See also Facebook, 480 F. Supp. 3d at 984 (“[A]though it has been suggested that
service by e-mail could conceivably come within an expansive reading of service ‘by postal
channels,’ China has affirmatively objected to service ‘by postal channels,’ so that reading, even if
accepted, wouldn’t support service by e-mail on defendants in China.”) (citation omitted).
Recent guidance posted by Supreme People’s Court of China leaves little doubt that China’s
objection to service by mail would encapsulate service by email. Article 11 of the Minutes of the

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National Symposium on Foreign-related Commercial and Maritime Trial Work provides guidance
for Chinese courts serving litigants outside of China. 8 Those minutes state:
In the event that the country where the person to be served is located is a
member state of the Hague Service Convention and objects to the service by
mail under the Convention, it shall be presumed that the country does not
allow electronic service, and the people’s court shall not adopt electronic
service.
July 1 Letter. That Chinese authorities opine that an objection to service by postal channels
includes an implicit objection to service by email provides significant support for the view that
China’s objection to service by postal channels would preclude service by email under the Hague
Convention.
Nevertheless, some courts, including courts in the Second Circuit, have come to the
opposite conclusion, determining that service via email on Chinese defendants is permitted by the
Hague Convention. See, e.g., Sulzer Mixpac AG v. Medenstar Indus. Co., 312 F.R.D. 329, 332 (S.D.N.Y.
2015); Kaneka Corp. v. Purestart Chem Enter. Co., No. 16CV4861MKBSIL, 2017 WL 11509784, at *3
(E.D.N.Y. Oct. 17, 2017); WeWork Cos. Inc. v. WePlus (Shanghai) Tech. Co., No. 5:18-CV-04543-EJD,
2019 WL 8810350, at *2–3 (N.D. Cal. Jan. 10, 2019). 9 Those courts typically reason that an
objection to service by postal channels does not expressly bar service via email, such that service by
As amici explain, these meeting minutes are not formal law in China. Nonetheless, “the Supreme People’s Court uses
meeting minutes such as these to distribute its views to lower courts to guide court actions, and lower courts are
expected to follow the guidance set forth in meeting minutes.” See July 1 Letter.

8

See also ShelterZoom Corp. v. Goroshevsky, No. 19-CV-10162, 2020 WL 4252722, at *2 (S.D.N.Y. July 23, 2020)(affirming
service via email for a defendant residing in Russia as Russia's objection to Article 10 did not explicitly extend to an
objection to electronic service); Mattel, Inc. v. Animefun Store, et al.,, No. 18–CV–8824, 2020 WL 2097624, at *5
(S.D.N.Y. May 1, 2022)(“China's objection to service by postal channels under Article 10 of the Hague Convention
does not encompass service by email and ... service by email is not prohibited by any international
agreement.”); AMTO v. Bedford Asset Mgmt. No. 14–CV–9913. LLC, 2015 WL 3457452, at *7 (S.D.N.Y. Jun 1,
2015)(authorizing service via email under Rule 4(f)(3) to a defendant residing in Russia where Russia did not explicitly
object to electronic service and neither international agreement nor Russian law prohibited service via email); F.T.C. v.
Pecon Software Ltd., No. 12 –CIV–7186 2013 WL 4016272, at *5 (S.D.N.Y. Aug. 17, 2013)(“Numerous courts have held
that service by email does not violate any international agreement where the objections of the recipient nation are
limited to those means enumerated in Article 10.”); Gurung, 279 F.R.D. at 220 (“[India’s] objection to service
through postal channels does not amount to an express rejection of service via electronic mail ..., [s]everal other courts
have found service by electronic mail appropriate where a signatory nation has not objected to that specific means of
service”).
9

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email is permitted. See, e.g., In re S. African Apartheid Litig., 643 F.Supp.2d 423, 434 (S.D.N.Y. 2009)
(permitting service on counsel in Germany and noting that “[a]lthough Germany has objected to
specific forms of service otherwise enumerated in the Hague Convention, it has not expressly
barred alternative forms of effective service not referenced in the Hague Convention.”); NBA
Properties, Inc. v. Partnerships & Unincorporated Associations Identified in Schedule “A”, 549 F. Supp. 3d
790, 798 (N.D. Ill. 2021), appeal dismissed sub nom. NBA Properties, Inc. v. HANWJH, No. 21-2378,
2021 WL 6689526 (7th Cir. Nov. 9, 2021) (determining that service via email was proper because
the court did not “interpret the term ‘postal channels’ to include electronic mail”); Chanel, Inc. v.
Individuals, Partnerships and Unincorporated Associations Identified on Schedule “A”, 2020 WL 8226841, *2
(S.D. Fla. 2020) (“Where a signatory nation has objected to the alternative means of service
provided by the Hague Convention, that objection is expressly limited to those means and does not
represent an objection to other forms of service, such as e-mail or website posting.”).
To those courts, where a country specifically objects to service by “postal channels,” a
method of service by means other than postal channels is permissible absent some other
prohibition. Sulzer—arguably the leading case in this district on this issue—adopts that rationale.
Sulzer, 312 F.R.D. at 332; see also e.g., Kaneka, 2017 WL 11509784 at *3 (relying on Sulzer); La Dolce
Vita Fine Dining Co. Ltd. v. Zhang Lan, No. 1:19-MC-00536-ALC, 2020 WL 7321366, at *6
(S.D.N.Y. Dec. 11, 2020) (same); Grp. One Ltd. v. GTE GmbH, No. 20-CV-2205 (MKB), 2021 WL
1727611 (E.D.N.Y. Feb. 3, 2021) (same).
The Court disagrees with Sulzer and its progeny. Notably, Sulzer was decided before Water
Splash was issued. And, as is the case here, the motion for alternative service in Sulzer was wholly
unopposed, such that the court did not have the benefit of briefing that took an alternative position
to that advanced by the plaintiff in that case. See Mixpac AG v. Medenstar Indus. Co., Case No. 1:15cv-1668, Dkt. Nos. 5–9 (S.D.N.Y.). In this Court’s view, like that of courts in the Northern
District of California, the District of Massachusetts, and the Northern District of Illinois (among
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others), Water Splash and Schlunk clarify that the Convention is meant to set forth simple and certain
methods of service that can be used to serve foreign litigants. To infer that the Convention’s
silence as to a particular method equates to an implied permission to use virtually any method of
service not proscribed by the Convention contravenes that purpose.
Moreover, the effect of a country’s objections under Article 10 would be significantly
diminished under Sulzer’s rationale. If the Convention lays out specific means of service, countries
can make specific objections to those means of service—just as a country can object to service by
postal channels by objecting to Article 10(a). But if the Convention’s silence as to a method of
service implicitly authorizes that service, there would be no ready way to object to that method of
service. Indeed, there would be nothing affirmative to object to. Simply put, the current force of
an objection to a method of service in the Convention would be far less effective. As the court in
Premier Sales aptly reasoned:
Countries, including China, objected to Article 10 of the Convention because, by its
clear language, the service methods identified were specifically permitted unless
objected to. The same cannot be said of email service. There is no reason for a
nation to affirmatively object to a service method that is not authorized or identified
because the Convention “specifies certain approved methods of service and ‘preempts inconsistent methods of service’ wherever it applies.
494 F. Supp. 3d 404, 416 (N.D. Tex. 2020) (quoting Water Splash, Inc., 137 S. Ct. at 1507).
Plaintiff also argues that service under Rule 4(f)(3) should be permitted given the “exigent”
circumstances Plaintiff faced. However, the Court need not determine whether the request was
truly urgent because it does not matter. There is no exigent circumstances exception in Rule
4(f)(3): Rule 4(f)(3), by its plain terms, does not permit service by a method prohibited by
international agreement. And as discussed, service by email on litigants in China is prohibited by
the Hague Convention. Indeed, in support of their argument to the contrary, Plaintiff relies only
on cases in which the court first determined that service was permissible under Rule 4(f)(3) before
turning to its discussion of urgency. See Hangzhou Chic Intelligent Tech. Co. v. P’ships & Unincorporated
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Ass’n Identified on Schedule A, No. 20 C 4806, 2021 WL 1222783, at *5 (N.D. Ill. Apr. 1, 2021)
(determining that “Hague Convention service is optional under Federal Rule of Civil Procedure 4”);
Microsoft Corp. v. Goldah.com Network Tech. Co., No. 17-CV-02896-LHK, 2017 WL 4536417, at *4
(N.D. Cal. Oct. 11, 2017) (“Microsoft was entitled to, and did, effect service according to the terms
of Rule 4(f)(3).”). This makes sense because the rules do not permit litigants to craft their own
method of service whenever they think the issue is urgent.
Simply put, the Hague Convention prohibits service by email on defendants located in
China. Rule 4(f)(3) only permits service by “means not prohibited by international agreement.”
Fed. R. Civ. P. 4(f)(3). Accordingly, defendants were not properly served pursuant to Rule 4(f)(3),
and Plaintiff has not established that the Court has personal jurisdiction over Defendants on that
basis.
4. Service Was Not Proper Under Rule 4(f)(2)(C)
Neither was service proper pursuant to Rule 4(f)(2)(c). Rule 4(f)(2)(c) provides that an
individual may be served in a foreign country “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 . . . unless prohibited by the foreign country’s law.” Fed. R. Civ. P. 4(f)(2).
Here, there is an internationally agreed upon means—the Hague Convention spells out
specific methods that could have been used to serve Defendants. And as discussed, the Hague
Convention does not allow service by email on litigants in China. But even if it did, Defendants in
this case were not be properly served under Rule 4(f)(2)(c) because Chinese law prohibits a foreign
party from serving defendants located in China by email.
Article 284 (formerly Article 277) of the People’s Republic of China Civil Procedure Law
(“Article 284”) directly addresses requests for judicial assistance, including service of process, in
China. Article 284 states:
A request for and the provision of judicial assistance shall be conducted through
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channels stipulated in the international treaties concluded or acceded to by the
People’s Republic of China, and in the absence of treaty relations, shall be conducted
through diplomatic channels.
An embassy or consulate of a foreign country in the People’s Republic of China may
serve documents on, investigate, or collect evidence from the citizens of that country,
provided, however, that the laws of the People’s Republic of China are not violated
and that no compulsory measures are adopted.
Except for the circumstances specified in the preceding paragraph, no foreign agency or individual may
serve documents, conduct investigations.
Article 284 (formerly Article 277) of the People’s Republic of China Civil Procedure Law (emphasis
added); see also Amicus Brief at 3–4.
Article 284 expressly provides that, subject to exceptions not applicable here, “no foreign
agency or individual may serve documents or collect evidence within the territory of the People’s
Republic of China without the consent of the in-charge authorities.” That provision is
unambiguous: foreign individuals cannot serve documents unless Chinese authorities consent to
their doing so. Moreover, and as previously discussed, China has objected to Article 10(a) of the
Hague Convention, thus disallowing service by postal channels. Thus, a foreign individual or entity
cannot, as a general rule, directly serve an individual in China by any means—not just email.
Rather, the first paragraph of Article 284 clarifies that service of process can only be made
“through channels stipulated in international treaties”—in other words, through the Hague
Convention’s Central Authority. China has designated its Ministry of Justice as its central authority.
See Amicus Brief at 4 (citing The World Organisation for Cross-border Co-operation in Civil and
Commercial Matters, China – Central Authority & Practical Information, FAQs,
https://assets.hcch.net/docs/5bbc302d-532b-40b1-9379-a2ccbd7479d6.pdf (last visited July 20,
2022) (“FAQs”)). Thus, the “channel” through which service by a foreign litigant must be made is
through the procedures set forth in the Hague Convention—and not by email.
Moreover, as amici explain, “in China, the courts themselves serve documents on litigants.”
Amicus Brief at 2. Parties do not directly serve judicial documents in China, as Plaintiff attempted
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to do here. To serve a party in China, an individual in a foreign country must apply to the Ministry
of Justice. See FAQs. If the Ministry of Justice approves that request, the Ministry of Justice will
forward the material to the Supreme People’s Court of China, which will review the request and
distribute it to a local court. Id. The local court then arranges the service and sends proof of
service back to the Ministry of Justice, which forwards that proof along to the serving party. Id.
Indeed, if there were any doubt that an email sent by a foreign litigant is an impermissible means of
service for litigants located in China, foreign litigants are precluded from emailing even an initial
request for service to the Ministry of Justice. See FAQs (“According to the Chinese Civil Procedure
Law, the court officer must serve the original hardcopies of the judicial documents on the recipient.
Therefore, scanned copies transferred by email or only duplicated copy without the original
signature is not acceptable.”).
Plaintiff’s expert, Mr. Wagner, claims that Article 274, and not Article 284, provides the
relevant law to determine whether email service is permitted. But Article 274 outlines the methods
for “[s]ervice of litigation documents by People’s Courts on litigants without a domicile in the
People’s Republic of China.” Wagner Decl. ¶ 24. Thus, Article 274 still requires service “by People’s
Courts.” Article 274 does not permit one individual or entity to directly serve another entity, as
Plaintiff attempted to do here. The reference to the “People’s Court’ in Article 274 is to courts of
China, not Judge Milian’s “People’s Court,” 10 or this Court. This Court is obviously not authorized
to serve individuals under Article 284. Plaintiff’s expert’s arguments based on Article 274 are
simply not on point because Plaintiff did not and is not seeking to serve the defendants under the
auspices of a People’s Court.
More broadly, Article 274’s text—which again, provides for service of litigation documents
by People’s Courts on litigants without a domicile in the People’s Republic of China—plainly

In the United States, the “People’s Court” is a popular daytime television show in which TV-personality Judge
Marilyn Milian presides over small claims in a simulated (and often dramatic) courtroom.
10

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applies when a court in the People Republic of China seeks to serve individuals who are not located
in China. That is not the case here, where a plaintiff located in a foreign country sought to serve a
litigant in China. Article 284, by contrast, expressly addresses the process by which a “foreign
agency or individual may serve documents [or] conduct investigations” in the People’s Republic of
China. It is clear that Article 284 more readily applies in cases like this one: cases where foreign
litigants seek to serve individuals in the People’s Republic of China. Cf. Sun Grp. U.S.A. Harmony
City, Inc. v. CRRC Corp. Ltd., No. 17-CV-02191-SK, 2019 WL 6134958, at *2 (N.D. Cal. Nov. 19,
2019) (accepting defendant’s expert’s representation that “Article 277 [now Article 284] prohibits
foreign entities or individuals from serving documents, investigating and/or conducting discovery
in the PRC”).
As mentioned, Plaintiff also argues that Article 90 (formerly Article 87) can be construed to
permit foreign litigants to serve individuals and entities in China by email. Article 90 states, “[u]pon
consent of the party on whom litigation documents are to be served, the People’s Court may adopt
an electronic method of service of litigation documents the receipt of which can be acknowledged.”
Amicus Brief at 5. First, as discussed, Plaintiff’s own expert disagrees that Article 90 applies in this
case. See supra § I(b). And second, by its plain text, Article 90 still requires that a “People’s Court”
serve litigation documents—not the parties. 11
In sum, Rule 4(f)(2)(C) only permits service via methods that are not “prohibited by the
foreign country’s law.” Here, the law of the People’s Republic of China prohibits foreign entities
and individuals from serving litigants in China without the consent of the Ministry of Justice. And

Plaintiff, Mr. Wagner, and amici devote significant discussion to the means by which an individual can consent to
electronic service under both Article 274 and Article 90. See Amicus Br. At 5–13, Wagner Decl. ¶¶ 25–27, Mem. at 7–
8. Plaintiff argues that Defendants agreed to electronic service by accepting Amazon’s terms and conditions, which
required Defendants to agree to receive communications by email. See Mem. at 8. Mr. Wagner and amici seem to agree
that the Supreme People’s Court has not yet addressed whether a party’s consent to a standard form contract with an
online retailer should be construed as consent to service by a third-party. But here, the Court need not determine what
constitutes consent in these circumstances because there is no dispute that a People’s Court, and not a litigant, must serve
a party in China.
11

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there is no dispute that Plaintiff did not apply to the Ministry of Justice to serve the defendants in
this case. Accordingly, Plaintiff failed to serve the defendants via Rule 4(f)(2)(C).
Accordingly, Defendants were not properly served in this case, and the Court lacks personal
jurisdiction to enter default judgment in Plaintiff’s favor.
5. Article 15 of the Hague Convention Prohibits the Entry of
Default Judgment
Even if the Court had determined that service by email was permissible under the Hague
Convention, it would still not be permitted to enter default judgment. “Article 15 [of the Hague
Convention] sets forth certain conditions that must be met prior to the entry of judgment when a
defendant has not appeared—i.e., prior to default judgment.” Prince v. Gov’t of People’s Republic of
China, No. 13-CV-2106 (TPG), 2017 WL 4861988, at *6 (S.D.N.Y. Oct. 25, 2017). Article 15
provides the following:
Where a writ of summons or an equivalent document had to be transmitted abroad
for the purpose of service, under the provisions of the present Convention, and the
defendant has not appeared, judgment shall not be given until it is established that
a) the document was served by a method prescribed by the internal
law of the State addressed for the service of documents in
domestic actions upon persons who are within its territory, or
b) the document was actually delivered to the defendant or to his
residence by another method provided for by this Convention,
and that in either of these cases the service or the delivery was
effected in sufficient time to enable the defendant to defend.
Each Contracting State shall be free to declare that the judge, notwithstanding the
provisions of the first paragraph of this Article, may give judgment even if no
certificate of service or delivery has been received, if all the following conditions are
fulfilled
a) the document was transmitted by one of the methods provided for in
this Convention,
b) a period of time of not less than six months, considered adequate by the
judge in the particular case, has elapsed since the date of the transmission
of the document,
c) no certificate of any kind has been received, even though every
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reasonable effort has been made to obtain it through the competent
authorities of the State addressed.
Notwithstanding the provisions of the preceding paragraphs the judge may order, in
case of urgency, any provisional or protective measures.
Hague Convention, art. 15 (“Article 15”).
In this case, as is typical in cases of this type, there is no dispute that Plaintiff’s never
received a “certificate” of any kind, such that the second paragraph of Article 15 applies. That
paragraph permits a judge to enter default judgment in a plaintiff’s favor only if at least the
following requirements are met: (1) the plaintiff transmitted the relevant documents “by one of the
methods provided for in the Convention;” and (2) “every reasonable effort has been made to
obtain such a certificate through the competent authorities of the state addressed.” 12 See also Zhang
v. Baidu.com Inc., 932 F. Supp. 2d 561, 565 (S.D.N.Y. 2013) (Article 15 states that “a judge may give
judgment, ‘even if no certificate of service or delivery has been received,’ if the document was
transmitted pursuant to the Convention, a period of time not less than six months has elapsed, and
‘no certificate of any kind has been received, even though every reasonable effort has been made to
obtain it through the competent authorities.’”).
Thus, Article 15 requires judicial documents be “transmitted” according to the procedures
laid out in the Convention in order for the Court to enter judgment in a plaintiff’s favor—even if
the plaintiff ultimately does not receive a certificate of service. As discussed, in this case that would
have required Plaintiff to send the relevant judicial documents to the Ministry of Justice. There is
no dispute that Plaintiff did not do so. And Plaintiff falls far short of establishing that it made any
reasonable efforts to obtain a certificate of service through authorities in China—it sought
A plaintiff must also ensure that “the document was served by a method prescribed by the internal law of the state
addressed for the service of documents in domestic actions.” As amici and Mr. Wagner explain, and as previously
mentioned, it is unclear whether parties may consent to electronic service by agreeing to a third-party’s terms and
conditions, as Plaintiff argues occurred here. However, because the other requirements in Article 15 are not satisfied,
the Court need not take up the question of whether Plaintiff demonstrated that documents were served by a method
prescribed by the internal law of China addressed for the service of documents in domestic actions upon persons who
are within its territory.
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permission to serve Defendants directly, via email, only two days after filing its Complaint.
Accordingly, the Court lacks the authority to enter default judgment in Plaintiff’s favor, and
declines to do so. See Zhang, 932 F. Supp 2d at 568 (denying a motion for default judgment where
defendant was not properly served under the Hague Convention).
Plaintiff asserts that it has satisfied Article 15 because this is a case of “urgency” such that
the Court may use any provisional or protective measures, Mem. at 14–15, but that argument has
no merit. Plaintiff’s position is that Plaintiff’s “request for the TRO and PI order was urgent for
the reasons demonstrated in Plaintiff’s application.” Mem. at 14. But even if service by email in
China were permitted in “urgent” circumstances—which, as discussed, it is not—Article 15 still
would not permit the entry of default judgment unless the plaintiff attempted to transmit the
relevant judicial documents pursuant to the methods outlined in the Hague Convention. “Article
15 says that a judgment may not be entered unless a foreign defendant received adequate and timely
notice of the lawsuit.” Schlunk, 486 U.S. at 703. To better ensure that a defendant is given notice
of a lawsuit, Article 15 imposes requirements on plaintiffs that are separate from, and in addition
to, service upon the defendant: as discussed, Article 15 requires that judicial documents are
“transmitted by one of the methods provided for in this Convention.” Article 15. Thus, even if a
party were initially served by email—a method that is not “provided for in th[e] Convention”—the
plain text of Article 15 plainly would require a plaintiff to also “transmit” the documents by a
“method provided for in th[e] Convention” before a court could enter a default judgment. In this
way, Article 15 serves as a metaphorical backstop to ensure that foreign defendants receive notice
of a lawsuit prior to the entry of judgment: if a plaintiff fails to transmit documents via a method in
the Hague Convention, it cannot collect a judgment. See Schlunk, 486 U.S. at 705 (“Article[] 15 . . .
provide[s] an indirect sanction against those who ignore [the Convention]”).
Accordingly, Plaintiff has not established that it is entitled to entry of default judgment in
under Article 15 of the Hague Convention.
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6.

CONCLUSION
It does not escape the Court that many requests by plaintiffs to serve a defendant in China

by email are unopposed, as was the case here and in Sulzer. Indeed, Plaintiff’s counsel’s firm has
filed approximately forty such requests in this district in 2022 alone, the majority of which appear
to be wholly unopposed. See, e.g., Kelly Toys Holdings, Llc V. Children 777 Store et al., Case No. 1:22cv-1857, Dkt No. 17 at 17–19 (requesting to serve defendants in China by email); The Pinkfong
Company Inc. v. 7 Day Store et al., Case No. 1:22-cv-4133, Dkt. No. 17 at 17–19 (same, using identical
language); Mattel Inc. v. Agogo Store et al., Case No. 1:22-cv-2388, Dkt. No. 11 at 17–19 (same, again
using identical language). Thus, courts are unlikely to be alerted to authority that casts doubt on the
propriety of their request for email service. In this case, it was not until YLILLY’s reply brief shed
light on the issue that the Court had any notice that email service might not be permissible on
defendants located in China. 13
The Court acknowledges that the inability to serve defendants in China by email could
present obstacles to bringing copyright and trademark enforcement actions against defendants who
operate online storefronts from that country. The Court understands that service via the
procedures outlined in the Hague Convention can be lengthy, and that there is little ability to
monitor the progress of a request for service to the Ministry of Justice. See In re Bibox Grp. Holdings
Ltd. Sec. Litig., No. 20CV2807(DLC), 2020 WL 4586819, at *3 (S.D.N.Y. Aug. 10, 2020)

The Court appreciates that Sulzer has been the leading case in this district on the issue of service of process by email
on entities in China and that counsel for Plaintiff may have taken the position that it was consistent with their duty of
candor to the Court not to present the substantial contrary authority from outside of this district with respect to that
issue. (It is less clear how counsel could rationalize a decision not to disclose the text of Article 15 of the Convention
and the Supreme Court’s commentary in Schlunk explaining its meaning in seeking default judgment in cases such as
this.) Full disclosure of adverse authority is helpful to the court—particularly in cases, where, as here, a motion is
unopposed. As the commentary to New York Rule of Professional Responsibility 3.3 states, “[a] tribunal that is fully
informed on the applicable law is better able to make a fair and accurate determination of the matter before it.”
N.Y.R.P.R. 3.3 comment [4]; see also Commentary to ABA Model Rule 3.3[4] (“an advocate has a duty to disclose
directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The
underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to
the case.”).
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(commenting that service through the procedures in the Hague Convention “poses the risk of
significant delay” and that plaintiffs would be unable to check the status of their request).
Moreover, the Court agrees that the goal of prosecuting copyright and trademark infringement
abroad is a noble one.
However, the Court may not ignore the text of Rule 4(f), the Hague Convention, and
Chinese law in order to make service more efficient for Plaintiff. Nor may the Court ignore the
implications of the Supreme Court’s decisions in Water Splash and Schlunk. Rather, the Court is
bound to those precedential and textual strictures. Indeed, “[t]hose rules are mandatory,
and . . . ‘the systemic comity interests embodied in the Service Convention’ shouldn’t be sacrificed
in the name of ‘concrete case management concerns.’” See Facebook, 480 F. Supp. 3d at 987
(quoting Maggie Gardner, Parochial Procedure, 69 Stan. L. Rev. 941, 1000 (2017) (footnote
omitted)).
For the reasons stated, Plaintiff’s motion for default judgment is denied.
SO ORDERED.
Dated: July 21, 2022
New York, New York

_____________________________________
GREGORY H. WOODS
United States District Judge

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