1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CATALYST LIFESTYLE LIMITED, Case No.: 22cv536-LL-MDD
12 Plaintiff, ORDER DENYING JOINT MOTION 13 v. TO DEEM SUMMONS AND COMPLAINT SERVED ON 14 ELAGO CO., LTD; and ELYEL DEFENDANT ELAGO CO., LTD CORPORATION, 15 Defendants. [ECF No. 15] 16
17 18 This matter is before the Court on the parties’ Joint Motion to Deem Summons and 19 Complaint Served on Defendant Elago Co., Ltd (“Elago”) (“Motion” or “Mot.”). ECF No. 20 15, Mot. For the reasons stated in this Order, the parties’ Joint Motion is DENIED. 21 I. BACKGROUND 22 On April 18, 2022, Plaintiff Catalyst Lifestyle Limited (“Plaintiff”) filed the 23 Complaint in this action against Defendant Elago and Defendant Elyel Corporation 24 (“Elyel”) (collectively “Defendants”) alleging patent and trademark infringements. ECF 25 No. 1 (“Complaint”). Defendant Elyel was properly served, and on August 29, 2022, Elyel 26 filed an answer to the Complaint with counterclaims against Plaintiff. ECF No. 9. 27 Defendant Elago is a Korean corporation with its principal place of business at 212- 28 704, 46, Wi city 4-ro, Ilsandong-gu, Goyang-si, Gyeonggi-do, Republic of Korea 10322. 1 Complaint ¶ 7. Plaintiff attempted to effect service on Elago in accordance with the Hague 2 Convention through the Central Authority of Korea. Mot. at 2. On October 17, 2022, 3 Plaintiff met and conferred with Defendant Elyel “about completing service on Defendant 4 Elago, which shares common ownership and management with Defendant Elyel.” Id. 5 Plaintiff thereafter emailed Defendant Elyel, through Elyel’s undersigned counsel, all 6 documents prepared and provided to the Central Authority of Korea for service on 7 Defendant Elago, including a Korean-translated version of the Complaint. Id. 8 On October 25, 2022, the parties jointly filed the Motion requesting the Court deem 9 service of process properly effectuated and completed on Defendant Elago given Plaintiff’s 10 efforts to follow the steps identified in the Hague Service Convention, the meet and confer 11 of the parties, and the email exchange of documents through counsel. Id. at 3. 12 II. LEGAL STANDARD 13 Rule 4(f) of the Federal Rules of Civil Procedure dictates the acceptable methods of 14 serving individuals in a foreign country. Fed. R. Civ. P. 4(f). If there is an “internationally 15 agreed means of service that is reasonably calculated to give notice,” then service in a 16 foreign country is permissible by such internationally agreed means as the Hague 17 Convention on the Service Abroad of Judicial and Extrajudicial Documents (the “Hague 18 Convention” or “Convention”), or “by any other means not prohibited by international 19 agreement, as the court orders.” Fed R. Civ. P. 4(f)(1), (3). Court-directed service under 20 Rule 4(f)(3) is as favored as service available under Rule 4(f)(1) unless prohibited by the 21 Hague Convention. Rio Props. v. Rio Int’l Interlink, 284 F.3d 1007, 1015–16 (9th Cir. 22 2002). 23 Alternative methods of service permissible under Rule 4(f)(3) include such means 24 as “publication, ordinary mail, mail to the defendant’s last known address, delivery to the 25 defendant’s attorney, telex, and most recently, email.” Id. at 1016. However, any method 26 of service, “[e]ven if facially permitted by Rule 4(f)(3), . . . must also comport with 27 constitutional notions of due process.” Id. In other words, the method of service “must be 28 ‘reasonably calculated, under all the circumstances, to apprise interested parties of the 1 pendency of the action and afford them an opportunity to present their objections.’” Id. at 2 1016–17 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). 3 “The reasonableness and hence the constitutional validity of any chosen method may be 4 defended on the ground that it is in itself reasonably certain to inform those affected[.]” 5 Mullane, 339 U.S. at 315. Ultimately, the court has discretion to determine “when the 6 particularities and necessities of a given case require alternate service of process under 7 Rule 4(f)(3).” Rio Props., 284 F.3d at 1016. 8 III. DISCUSSION 9 Plaintiff points to its efforts to attempt to complete the steps for service, including: 10 (1) attempting physical service on Defendant Elago through the Central Authority of 11 Korea; (2) meeting and conferring with Defendant Elyl about completing service on 12 Defendant Elago; and (3) emailing Defendant Elyl, through Elyel’s and Elago’s 13 undersigned counsel, all documents prepared and provided to the Central Authority of 14 Korea for service on Defendant Elago, which included a Korean-translated version of the 15 Complaint. Mot. at 2. 16 A. Plaintiff’s Attempted Service Through the Central Authority of Korea 17 Plaintiff first attempted service through the procedures set forth in the Hague 18 Convention. The Republic of Korea is a party to the Hague Convention on the Service 19 Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened 20 for signature Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. Under the terms of the 21 Convention, service in a foreign country must usually be performed by a receiving 22 country's “Central Authority,” which is provided with the documents and effects service in 23 the member country. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (“The 24 primary means by which service is accomplished under the [Hague] Convention is through 25 a receiving country's ‘Central Authority.’”); see also Hague Convention, Ch. 1, Art. 3 26 (“The authority or judicial officer competent under the law of the State in which the 27 documents originate shall forward to the Central Authority of the State addressed a request 28 conforming to the model annexed to the present Convention”). 1 Here, Defendant Elago is located in Korea, a signatory to the Hague Convention 2 referenced in Rule 4(f)(1). See Complaint ¶ 7. In efforts to conform with the Convention’s 3 procedures, Plaintiff attempted physical service of a Korean-translated version of the 4 complaint and a copy of the summons through the Central Authority of Korea. Mot. at 2. 5 Plaintiff, however, was unsuccessful in its attempt to service Elago. Id. The Court now 6 turns to whether Plaintiff’s alternative efforts to complete service can be deemed 7 effectuated as to Defendant Elago pursuant to Rule 4(f)(3). 8 B. Plaintiff’s Attempted Service by Email Upon U.S.-Based Counsel 9 Plaintiff’s next method, service by email upon Defendants’ United States-based 10 counsel, does not implicate the Hague Convention because it does not involve the 11 transmission of judicial documents for service abroad. Here, Plaintiff sent an email in the 12 United States to Defendants’ undersigned counsel in the United States. Under these service 13 methods, Plaintiff would not be transmitting judicial documents for service abroad, and 14 therefore, the Hague Convention would not apply. See Volkswagenwerk Aktiengesellschaft 15 v. Schlunk, 486 U.S. 694, 707 (1988) (“[i]f valid service occurs in the United States . . . the 16 Convention is not implicated regardless of the location of the party.”). Since the Hague 17 Convention does not apply, service of process by email is permitted under Rule 4(f)(3).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CATALYST LIFESTYLE LIMITED, Case No.: 22cv536-LL-MDD
12 Plaintiff, ORDER DENYING JOINT MOTION 13 v. TO DEEM SUMMONS AND COMPLAINT SERVED ON 14 ELAGO CO., LTD; and ELYEL DEFENDANT ELAGO CO., LTD CORPORATION, 15 Defendants. [ECF No. 15] 16
17 18 This matter is before the Court on the parties’ Joint Motion to Deem Summons and 19 Complaint Served on Defendant Elago Co., Ltd (“Elago”) (“Motion” or “Mot.”). ECF No. 20 15, Mot. For the reasons stated in this Order, the parties’ Joint Motion is DENIED. 21 I. BACKGROUND 22 On April 18, 2022, Plaintiff Catalyst Lifestyle Limited (“Plaintiff”) filed the 23 Complaint in this action against Defendant Elago and Defendant Elyel Corporation 24 (“Elyel”) (collectively “Defendants”) alleging patent and trademark infringements. ECF 25 No. 1 (“Complaint”). Defendant Elyel was properly served, and on August 29, 2022, Elyel 26 filed an answer to the Complaint with counterclaims against Plaintiff. ECF No. 9. 27 Defendant Elago is a Korean corporation with its principal place of business at 212- 28 704, 46, Wi city 4-ro, Ilsandong-gu, Goyang-si, Gyeonggi-do, Republic of Korea 10322. 1 Complaint ¶ 7. Plaintiff attempted to effect service on Elago in accordance with the Hague 2 Convention through the Central Authority of Korea. Mot. at 2. On October 17, 2022, 3 Plaintiff met and conferred with Defendant Elyel “about completing service on Defendant 4 Elago, which shares common ownership and management with Defendant Elyel.” Id. 5 Plaintiff thereafter emailed Defendant Elyel, through Elyel’s undersigned counsel, all 6 documents prepared and provided to the Central Authority of Korea for service on 7 Defendant Elago, including a Korean-translated version of the Complaint. Id. 8 On October 25, 2022, the parties jointly filed the Motion requesting the Court deem 9 service of process properly effectuated and completed on Defendant Elago given Plaintiff’s 10 efforts to follow the steps identified in the Hague Service Convention, the meet and confer 11 of the parties, and the email exchange of documents through counsel. Id. at 3. 12 II. LEGAL STANDARD 13 Rule 4(f) of the Federal Rules of Civil Procedure dictates the acceptable methods of 14 serving individuals in a foreign country. Fed. R. Civ. P. 4(f). If there is an “internationally 15 agreed means of service that is reasonably calculated to give notice,” then service in a 16 foreign country is permissible by such internationally agreed means as the Hague 17 Convention on the Service Abroad of Judicial and Extrajudicial Documents (the “Hague 18 Convention” or “Convention”), or “by any other means not prohibited by international 19 agreement, as the court orders.” Fed R. Civ. P. 4(f)(1), (3). Court-directed service under 20 Rule 4(f)(3) is as favored as service available under Rule 4(f)(1) unless prohibited by the 21 Hague Convention. Rio Props. v. Rio Int’l Interlink, 284 F.3d 1007, 1015–16 (9th Cir. 22 2002). 23 Alternative methods of service permissible under Rule 4(f)(3) include such means 24 as “publication, ordinary mail, mail to the defendant’s last known address, delivery to the 25 defendant’s attorney, telex, and most recently, email.” Id. at 1016. However, any method 26 of service, “[e]ven if facially permitted by Rule 4(f)(3), . . . must also comport with 27 constitutional notions of due process.” Id. In other words, the method of service “must be 28 ‘reasonably calculated, under all the circumstances, to apprise interested parties of the 1 pendency of the action and afford them an opportunity to present their objections.’” Id. at 2 1016–17 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). 3 “The reasonableness and hence the constitutional validity of any chosen method may be 4 defended on the ground that it is in itself reasonably certain to inform those affected[.]” 5 Mullane, 339 U.S. at 315. Ultimately, the court has discretion to determine “when the 6 particularities and necessities of a given case require alternate service of process under 7 Rule 4(f)(3).” Rio Props., 284 F.3d at 1016. 8 III. DISCUSSION 9 Plaintiff points to its efforts to attempt to complete the steps for service, including: 10 (1) attempting physical service on Defendant Elago through the Central Authority of 11 Korea; (2) meeting and conferring with Defendant Elyl about completing service on 12 Defendant Elago; and (3) emailing Defendant Elyl, through Elyel’s and Elago’s 13 undersigned counsel, all documents prepared and provided to the Central Authority of 14 Korea for service on Defendant Elago, which included a Korean-translated version of the 15 Complaint. Mot. at 2. 16 A. Plaintiff’s Attempted Service Through the Central Authority of Korea 17 Plaintiff first attempted service through the procedures set forth in the Hague 18 Convention. The Republic of Korea is a party to the Hague Convention on the Service 19 Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened 20 for signature Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. Under the terms of the 21 Convention, service in a foreign country must usually be performed by a receiving 22 country's “Central Authority,” which is provided with the documents and effects service in 23 the member country. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (“The 24 primary means by which service is accomplished under the [Hague] Convention is through 25 a receiving country's ‘Central Authority.’”); see also Hague Convention, Ch. 1, Art. 3 26 (“The authority or judicial officer competent under the law of the State in which the 27 documents originate shall forward to the Central Authority of the State addressed a request 28 conforming to the model annexed to the present Convention”). 1 Here, Defendant Elago is located in Korea, a signatory to the Hague Convention 2 referenced in Rule 4(f)(1). See Complaint ¶ 7. In efforts to conform with the Convention’s 3 procedures, Plaintiff attempted physical service of a Korean-translated version of the 4 complaint and a copy of the summons through the Central Authority of Korea. Mot. at 2. 5 Plaintiff, however, was unsuccessful in its attempt to service Elago. Id. The Court now 6 turns to whether Plaintiff’s alternative efforts to complete service can be deemed 7 effectuated as to Defendant Elago pursuant to Rule 4(f)(3). 8 B. Plaintiff’s Attempted Service by Email Upon U.S.-Based Counsel 9 Plaintiff’s next method, service by email upon Defendants’ United States-based 10 counsel, does not implicate the Hague Convention because it does not involve the 11 transmission of judicial documents for service abroad. Here, Plaintiff sent an email in the 12 United States to Defendants’ undersigned counsel in the United States. Under these service 13 methods, Plaintiff would not be transmitting judicial documents for service abroad, and 14 therefore, the Hague Convention would not apply. See Volkswagenwerk Aktiengesellschaft 15 v. Schlunk, 486 U.S. 694, 707 (1988) (“[i]f valid service occurs in the United States . . . the 16 Convention is not implicated regardless of the location of the party.”). Since the Hague 17 Convention does not apply, service of process by email is permitted under Rule 4(f)(3). 18 See Rio Props., 284 F.3d at 1015. 19 The Ninth Circuit has frequently held that service by email under Rule 4(f)(3) is 20 proper so long as that service is reasonably calculated to give the parties notice and an 21 opportunity to respond. Id. at 1017. The Ninth Circuit has made clear, however, that under 22 “Rio (and in all the cases it cites as applying Rule 4(f)(3)),” a movant “must obtain prior 23 court approval for the alternative method of serving process.” Brockmeyer v. May, 383 24 F.3d 798, 806 (9th Cir. 2004) (emphasis added). 25 Here, the parties move to deem service of the summons and complaint effective 26 without prior court approval. While the courts, including the courts in this district, have 27 previously approved alternative service by email, this was only in response to and after the 28 parties had already filed a motion permitting service of process by email. See TI, Limited 1 || v. Chavez, 2020 WL 3316974, at *5 (S.D. Cal. June 18, 2020) (court granted the plaintiff’ s 2 ||motion permitting service of process by email as to the defendants); SEC v. de Nicolas 3 || Gutierrez, 2020 WL 1307143, at *3 (S.D. Cal. Mar. 19, 2020) (court granted the plaintiff’ s 4 || motion for leave to effect alternative service of the complaint and summons on defendants); 5 || Hawkins v. Bank of America, N.A., 2018 WL 1616941, at *5 (S.D. Cal. Apr. 4, 2018) (court 6 granted an ex parte request to authorize alternative service of process on Defendant’s 7 || United States-based counsel by email). Plaintiff cannot merely deem its own email service 8 ||on Elago’s United States-based counsel as effectuated but must first request the court to 9 || assess whether alternative service for Defendant Elago is permitted under Rule 4(f)(3). See 10 || Rio Props., 284 F.3d at 1014 (it falls within the court’s discretion to determine “when the 11 particularities and necessities of a given case require alternate service of process under 12 || Rule 4(f)(3).”*); Guifu Lu v. A Perfect Day Franchise, Inc., 281 F.R.D. 373, 388 (N.D. Cal. 13 2012) (“Pursuant to Rule 4(f)(3), a court may direct [alternative means of] service when 14 facts and circumstances of the present case necessitate the district court's 15 ||intervention.’”). As such, this Court must deny the Motion. 16 CONCLUSION 17 For the foregoing reasons, the Court DENIES the Motion as follows: 18 1. The parties’ Joint Motion to Deem Summons and Complaint Served on 19 || Defendant Elago is DENIED. 20 2. A new motion requesting the court authorize alternative service of process on 21 || Defendant Elago is due within seven (7) days from the date of this Order. Any responses 22 ||shall be filed within five (5) days after the motion is filed, and any replies shall be filed 23 || within five (5) days after the responses are filed. 24 IT IS SO ORDERED. 25 ||Dated: November 15, 2022 NO 26 NF) 7 Honorable Linda Lopez 38 United States District Judge