Professional Investigating & Consulting Agency Inc v. Suzuki et al

Filing 26

OPINION AND ORDER granting 25 Plaintiff's Motion to effect service through the Central Authority or through the email addresses provided on or before 1/31/2014. If Plaintiff cannot effect service over one or both Defendants by that date, this case will be dismissed without prejudice. Signed by Magistrate Judge Elizabeth Preston Deavers on 1/7/2014. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PROFESSIONAL INVESTIGATING
& CONSULTING AGENCY INC.,
Plaintiff,
Civil Action 2:11-cv-01025
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers

v.

DAVID SUZUKI, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff’s Motion for Order Directing
Email Service. (ECF No. 25.) In the Motion, Plaintiff seeks permission to serve foreign
defendants David Suzuki (“Mr. Suzuki”) and Suzuki Reconnaissance Advisors, Ltd. (“SRA”)
by electronic mail (“email”). For the reasons that follow, Plaintiff’s Motion is GRANTED.
Plaintiff must effect service over Defendants David Suzuki and SRA via email or through the
Central Authority ON OR BEFORE JANUARY 31, 2014.
I.
Plaintiff has tried diligently to effect service over the foreign Defendants since filing its
Complaint on November 15, 2011. Both Defendants reside in Hong Kong in the People’s
Republic of China (“PRC”). Plaintiff’s principal place of business is in Columbus, Ohio.
Plaintiff contracted with Legal Language Services (“LLS”), an international litigation support
service, soon after filing its Complaint. Plaintiff paid LLS to serve both Defendants through the
PRC’s Central Authority. LLS ran into difficulty, however, because it did not have Defendants’
correct addresses. Despite Plaintiff’s inability to effect proper service over Defendants, a Hong
Kong law firm purporting to represent Defendants reached out to Plaintiff. The law firm refused

to accept service on Defendants’ behalf, but did begin settlement negotiations with Plaintiff. On
August 28, 2012, Plaintiff amended its Complaint in order to correct Defendants’ addresses.
Plaintiff again retained LLS to serve its Amended Complaint on Defendants. Plaintiff’s service
package arrived at the PRC’s Central Authority on September 14, 2012. To date, the Central
Authority has not effected service over Defendants.
Frustrated by the delays at the Central Authority, Plaintiff attempted to serve Defendants
physically. His process server managed to approach Mr. Suzuki and leave him a copy of the
Summons and Amended Complaint. Soon after, Mr. Suzuki sent a letter to the Court,
indicating that he and SRA should be dismissed because physical service was improper. (ECF
No. 22.) In his letter, Mr. Suzuki noted that he “may be contacted at [e-mail].”
(Id.) Although physical service was improper, the Court did not dismiss the case and gave
Plaintiff until January 31, 2014 to effect service over Defendants through the Central Authority.
(ECF No. 24.)
Plaintiff filed the subject Motion on December 31, 2013. Plaintiff asks the Court to allow
it to serve Defendants by email. Plaintiff argues that an alternative means of service is required
because of the delays at the Central Authority. Plaintiff notes that the email is reasonably
calculated to reach Mr. Suzuki because he provided the email address in his letter to the Court.
Plaintiff further asserts that the email is reasonably calculated to reach SRA because the email
address is the one provided on its company website. Moreover, Mr. Suzuki has actual
knowledge of the lawsuit against him and has already been served with a copy of the Summons
and Amended Complaint. Finally, Plaintiff notes that the Hague Convention is “silent” on email
service and the PRC does not specifically object to email service in its Declarations and
Reservations to the Convention. (Pl.’s Mot. 3, ECF No. 25.) In the alternative, Plaintiff
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requests extra time in which to serve Defendants through the Central Authority.
II.
Federal Rule of Civil Procedure 4(f) provides that an individual foreign defendant may be
served outside of the United States “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 Extrajudical Documents.” Fed. R. Civ. P. 4(f). The United
States and the PRC are both signatories to the Hague Convention. U.S. ex rel Thomas v. Siemens
AG, 708 F. Supp. 2d 505, 517-18 (E.D. Pa. 2010). A foreign corporation may be served “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)(2).
Generally, the Hague Convention “requires signatory countries to establish a Central
Authority to receive requests for service of documents from other countries and to serve those
documents.” Zhang v. Baidu.com Inc., 932 F. Supp. 2d 561, 565 (S.D.N.Y. 2013) (citing Hague
Convention arts. 2-6). Article 10 of the Hague Convention, however, allows for service through
postal channels or personal service by judicial officers, and applies unless the destination
country has objected to those specific methods of service. Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents, art. 10, Jan. 8, 1969, T.I.A.S. No. 6638. The
PRC has objected to Article 10 of the Convention in its entirety. See People’s Republic of
China’s Decls. & Reservs. to the Hague Convention, entered into force on July 19, 1970,
available at http://www.hcch.net/index_en.php?act=status.comment&csid=393&disp=resdn (last
visited Jan. 6, 2014).
“[C]ompliance with the [Hague] Convention is mandatory in all cases to which it
applies.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988). A court,
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however, may order alternative means of service when the method comports with constitutional
notions of due process and is not prohibited by international agreement. Fed. R. Civ. P. 4(f)(3);
see also Lexmark Int’l, Inc. v. Ink Techs. Printer Supplies, LLC, 291 F.R.D. 172, 174 (S.D. Ohio
2013) (noting that the alternative method must be directed by the court, must not be prohibited
by international agreement, and must be “‘reasonably calculated, under all the circumstances, to
apprize interested parties of the pendency of the action and afford them an opportunity to present
their objections.’”) (quoting Studio A. Entm’t, Inc. v. Active Distribs., Inc., No. 1:06cv2496,
2008 WL 162785, at *4 (N.D. Ohio Jan. 15, 2008). Before ordering alternative service, “[t]he
court may require a showing by the plaintiff that reasonable efforts to serve defendant have
already been made and the court’s intervention will avoid further unduly burdensome or futile
attempts at service.” Studio A. Entm’t, 2008 WL 162785 at *3.
III.
The Court concludes that Plaintiff meets all of the requirements of Rule 4(f)(3) and is
entitled to serve Defendants through email. First, Plaintiff has sufficiently shown that service
through email is not prohibited by an international agreement. As Plaintiff contends, the Hague
Convention is silent on email service. “Various courts have agreed that service by email is not
prohibited by the Hague Convention.” Lexmark, 291 F.R.D. at 174; see also Facebook, Inc. v.
Banana Ads, LLC, No. C-11-3619 YGR, 2012 WL 1038752, at *2 (N.D. Cal. Mar. 27, 2012)
(noting that the “Hague Service Convention does not expressly prohibit email service.”);
Williams-Sonoma Inc. v. Friendfinder Inc., No. C 06-06752 JSW, 2007 WL 1140639, at *2
(N.D. Cal. Apr. 17, 2007) (concluding that the plaintiff demonstrated that service via email is not
prohibited by the Hague Convention). “Email service has been approved even where, as here,
the country objects to Article 10 of the Hague Convention.” Lexmark, 291 F.R.D. at 175
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(allowing email service on defendants in the PRC); see also Gurung v. Malhotra, 279 F.R.D.
215, 219 (S.D.N.Y. 2011) (“Where a signatory nation has objected to only those means of
service listed in Article [10], a court acting under Rule 4(f)(3) remains free to order alternative
means of service that are not specifically referenced in Article [10]”).
Second, Plaintiff has provided the Court with sufficient information that email service
comports with constitutional notions of due process. Serving Defendants at the email addresses
Plaintiff proposes is reasonably calculated to apprize Defendants of the action pending against
them.1 Mr. Suzuki provided the email address himself in a letter to the Court. The corporate
email address is less obviously connected to SRA. Plaintiff proposes to use the email address on
the company website for “SRA Worldwide Risk Management, Ltd.” See SRA Worldwide Risk
Management, http://www.sraww.com/Pages/sitemap.aspx (last visited Jan. 6, 2014). Plaintiff
asserts that SRA is also known as “SRA Worldwide Risk Management, Ltd.” (Pl.’s Mot. 3, ECF
No. 25.) The Court conducted a search of the two companies and agrees with Plaintiff that it is
reasonable to conclude that the companies are the same entity. Mr. Suzuki is a principal of
SRA, and his email address has the same domain name as the one provided for SRA Worldwide
Risk Management, Ltd. A search of the phrase “Suzuki Reconnaissance Advisors, Ltd.” yields
the SRA Worldwide Risk Management, Ltd. website provided by Plaintiff. Plaintiff has
provided sufficient information to show that both email addresses are valid ways to apprize
Defendants of the action pending against them. Thus, this method of service comports with due
process requirements.
Finally, Plaintiff has sufficiently shown that the circumstances of this case warrant

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The Court also emphasizes that Defendants have actual knowledge of the lawsuit, which
bolsters the position that email service would sufficiently satisfy any due process concerns.
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alternative service. Plaintiff has made every reasonable effort to effect service over Defendants
under the Central Authority. This case has been pending for over two years. The PRC’s Central
Authority has had Plaintiff’s service package since 2012. Allowing Plaintiff to serve Defendants
by email will avoid further burdensome and likely futile attempts at service through the Central
Authority. Further, Mr. Suzuki is clearly aware of the action pending against him and SRA.
Defendants’ law firm has been involved in negotiating settlement of this case with Plaintiff since
2012. Mr. Suzuki was personally served with a copy of the Summons and Complaint, and went
as far as to write a letter to the Court about the pending lawsuit. Thus, the Court concludes that
alternative service is warranted under the facts of this case.
The Court therefore authorizes service on Defendants through email. Plaintiff may serve
Summonses and copies of its Amended Complaint on Mr. Suzuki at [e-mail] and
on SRA at [e-mail].
IV.
Plaintiff’s Motion is GRANTED. Plaintiff must effect service through the Central
Authority or through the email addresses provided above ON OR BEFORE JANUARY 31,
2014. If Plaintiff cannot effect service over one or both Defendants by that date, this case will be
DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.

Date: January 7, 2014

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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