State of South Carolina, The v. Hitachi Displays Ltd et al
Filing
22
ORDER denying 18 Motion to Serve Defendant Epson Imaging Devices Corp. through its United States Counsel. Signed by Honorable Joseph F Anderson, Jr on 08/20/2013.(bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
The State of South Carolina,
Plaintiff,
vs.
Hitachi Displays, Ltd., Epson Imaging
Devices Corporation, and Sharp
Corporation
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
C/A No.: 3:13-cv-00899-JFA
ORDER
This matter comes before the court on Plaintiff’s Motion to Serve Defendant
Epson Imaging Devices Corp. Through Its United States Counsel. ECF No. 18.
Specifically, Plaintiff, the State of South Carolina, (“South Carolina”) seeks to serve
Japan-based Defendant Epson Imaging Devices Corp. (“Epson”) through its United
States counsel, Stephen P. Freccero.
Epson has filed a Response in Opposition to
Plaintiff’s Motion. ECF No. 20.
I.
Factual and Procedural History
South Carolina filed its Complaint in the Court of Common Pleas for Richland
County on December 10, 2012, against Epson, Hitachi Displays, Ltd. (“Hitachi”), and
Sharp Corporation (“Sharp”). Sharp removed the action to this court on April 4, 2013.
South Carolina alleges in its Complaint that the named defendants engaged in a
conspiracy between 1996 and 2006 to fix prices for thin film transistor-liquid crystal
display (“TFT-LCD”) panels. On April 15, 2013, this court remanded South Carolina’s
1
claims against Hitachi to the Richland County Court of Common Pleas.
The case
remaining in this court is one of four complaints1 stayed pending the outcome of a
petition for a writ of certiorari filed in the United States Supreme Court.
South Carolina has made two attempts to effectuate service on Epson. First, on
December 11, 2012, South Carolina’s counsel sent an email to Mr. Freccero, asking that
he accept service of process on behalf of Epson. Mr. Freccero declined. Second, South
Carolina’s counsel attempted to effectuate service on Epson in Japan pursuant to the
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361 (“Hague Service
Convention”). The Summons and Complaint were delivered to the Ministry of Foreign
Affairs in Japan on January 10, 2013. However, Japanese authorities were not able to
facilitate the service of process because South Carolina’s request for service contained an
outdated address for Epson.
In its motion, South Carolina asks this court to allow South Carolina to serve
initial pleadings and subsequent filings upon Epson through Mr. Freccero, pursuant to
Fed. R. Civ. P. 4(f)(3).
II.
Legal Standard
Rule 4(f) of the Fed. R. Civ. P. provides that a party may serve a foreign
corporation through any one of several methods, including: (1) an international
agreement, such as the Hague Service Convention; (2) letter rogatory; or (3) “other
1
The other cases are South Carolina v. LG Display Co., Ltd., et al., 3:11-cv-00729-JFA; South
Carolina v. AU Optronics Corp., et al., 3:11-cv-00731-JFA; and South Carolina v. Chi Mei
Optoelectronics Corp., et al., 3:12-cv-01776-JFA.
2
means not prohibited by international agreement, as the court orders.” Rule 4(f) of the
Fed. R. Civ. P. “does not denote any hierarchy or preference of one method of service
over another.” BP Prod. N. Am., Inc. v. Dagra, 232 F.R.D. 263, 264 (E.D. Va. 2005)
(citing Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002)). “The
only limitations on Rule 4(f)(3) are that the means of service must be directed by the
court and must not be prohibited by international agreement.” Id.
III.
Analysis
South Carolina submits that this court should allow it to serve Epson through its
United States counsel, Mr. Freccero, because courts “in the Fourth Circuit recognize that
Rule 4(f)(3) of the Federal Rules of Civil Procedure is on equal footing with other
methods of service.” ECF No. 18, p. 3. South Carolina points out that “Rule 4(f)(3) is
not subsumed within or in any way dominated by Rule 4(f)’s other subsections; it stands
independently, on equal footing . . . Thus, court-directed service under Rule 4(f)(3) is as
favored as service available under Rule 4(f)(1) or Rule 4(f)(2).” ECF No. 18, p. 4
(quoting Williams v. Advertising Sex, LLC, 231 F.R.D. 483, 485 (N.D.W.Va. 2005)
(internal citations omitted)). South Carolina also submits that it “need not exhaust every
potential available method of service of process prior to requesting service through a
foreign defendant’s United States counsel under Rule 4(f)(3).” ECF No. 18, p. 4. (citing
Brookshire Brothers, Ltd. v. Chiquita Brands Int. Inc., No. 05-CIV-21962, 2007 WL
1577771, *1 (S.D. Fl. May 31, 2007)). No international agreement prohibits service on
Epson through its United States counsel when ordered by a United States court, and
South Carolina contends that service in that manner would not violate Due Process
3
principles.
ECF No. 18, pp. 5–6.
“Epson’s United States counsel is reasonably
calculated to notify the Epson of the subject action and will present it with a fair
opportunity to answer the complaint and present defenses.” Id. Finally, South Carolina
points out that, in a related TFT-LCD case,2 this court granted a motion to serve two
defendants, Chunghwa Picture Tubes, Ltd., and Hannstar Display Corp., through their
respective United States counsel. ECF No. 18, p. 6.
Epson responds that service through its United States council is not necessary
because Epson’s address in Japan is readily obtainable, and Epson has made no attempts
to evade service. ECF No. 20, p. 1. Though 4(f)(3) provides for alternative service,
South Carolina carries the burden to prove that alternative service is warranted based on
necessity, not expediency, and Epson submits that South Carolina has not met its burden.
ECF No. 20, pp. 5–6 (citing Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015–
16 (9th Cir. 2002) (distinguishing the facts in the Ninth Circuit Court of Appeals case in
which the foreign defendant had no publicly available address)). Also, Epson submits
that the Hague Service Convention “is available and will work, which is precisely the
opposite of what the State needed to show to receive permission to serve under Rule
4(f)(3).” ECF No. 20, p. 6 (citing Madu, Edozie & Madu, P.C. v. SocketWorks Ltd.
Nigeria, 265 F.R.D. 106, 116 (S.D.N.Y. 2010); FMAC Loan Receivables v. Dagra, 228
F.R.D. 531, 534 (E.D. Va. 2005)). Finally, Epson points out that Japan is a signatory to
the Hague Service Convention, and, thus, alternative service is appropriate only “in cases
2
South Carolina v. Chi Mei Optoelectronics Corp., et al., 3:12-cv-01776-JFA.
4
of urgency” or on the “failure of the foreign country’s Central Authority to effect
service.” ECF No. 20 pp. 7–8 (citing Fed. R. Civ. P. 4 Advisory Committee Note).
IV.
Conclusion
After considering the parties’ arguments, this court hereby denies South Carolina’s
motion to serve Epson through its United States counsel. Although Rule 4(f)(3) provides
for court-directed service in some situations, this court finds service on Epson’s United
States counsel improper under these circumstances. Unlike in the related TFT-LCD
case,3 in which this court granted South Carolina’s motion to serve the Taiwanese
defendants through their respective United States counsel, Japan is a signatory to the
Hague Service Convention, which provides South Carolina with an international process
for effectuation service on Epson. Additionally, since this court granted the motion for
alternative service in the related TFT-LCD case, all four TFT-LCD cases have been
stayed pending the outcome of a petition for a writ of certiorari filed in the United States
Supreme Court. As a result, South Carolina has time to effectuate service through the
Hague Service Convention. Finally, this court is satisfied that Epson’s correct address in
Japan is readily obtainable and, therefore, finds no need to intervene in the process.
IT IS SO ORDERED.
August 20, 2013
Columbia, South Carolina
3
Joseph F. Anderson, Jr.
United States District Judge
South Carolina v. Chi Mei Optoelectronics Corp., et al., 3:12-cv-01776-JFA.
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?