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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 FANG CONG, CASE NO. 2:21-cv-01703-TL 12 Plaintiff, ORDER DENYING MOTION FOR v. EMAIL SERVICE 13 XUE ZHAO, 14 Defendant. 15
17 This matter comes before the Court on Plaintiff’s motion for leave to serve Defendant via 18 email (Dkt. No. 12). Having considered the relevant record and governing law, the Court DENIES 19 the motion. 20 I. BACKGROUND 21 Plaintiff Fang Cong, a Chinese citizen, is proceeding pro se (without an attorney) in this 22 case alleging copyright infringement of a logo and symbol Cong had designed, in violation of 17 23 U.S.C. § 504(b). See Dkt. No. 1-1 at 3–4, 6. On January 3, 2022, the Court granted her motion 24 1 for leave to proceed in forma pauperis. Dkt. No. 3. Defendant Xue Zhao is alleged to be a 2 developer and publisher who is also a citizen of China. Dkt. No. 1-1 at 3. 3 On March 3, 2022, Plaintiff filed the instant motion. Dkt. No. 12. In it, Plaintiff seeks 4 authorization to: (1) “service summons and other documents on the Defendant via Email ONCE
5 MORE;” and (2) to continue to serve Defendant via email without Defendant’s consent “until the 6 Defendant provides a new address.” Id. at 2–3 (emphasis in original). In support of this request, 7 Plaintiff cites to Rules 4(c)(1) and 4(m) of the federal rules of civil procedure (FRCP), as well as 8 previous attempts to serve a lawyer who used to represent Defendant. Id. at 2. 9 II. LEGAL STANDARD 10 FRCP 4(c)(1) states that plaintiffs are “responsible for having the summons and 11 complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to 12 the person who makes the service.” Fed. R. Civ. P. 4(c)(1). FRCP 4(m) provides a ninety-day 13 window in which plaintiffs must typically serve defendants; however, it explicitly “does not 14 apply to service in a foreign country under Rule 4(f) . . . .” Fed. R. Civ. P. 4(m). Under FRCP
15 4(f), individuals located outside of judicial districts of the United States may be served “by any 16 internationally agreed means of service that is reasonably calculated to give notice, such as those 17 authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial 18 Documents.” Fed. R. Civ. P. 4(f)(1). 19 The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents 20 (the “Hague Service Convention”) is an international treaty. See generally the Hague Service 21 Convention, opened for signature Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. 6638. China and the 22 United States have signed the Hague Convention. See Status Table, HCCH, 23 https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last updated June 17,
24 2021) (listing parties to the convention). “The Hague Convention requires signatory countries to 1 establish a Central Authority to receive requests for service of documents from other countries 2 and to serve those documents by methods compatible with the internal laws of the receiving 3 state.” Rubie’s Costume Co. v. Yiwu Hua Hao Toys Co., Ltd., No. 2:18-cv-01530, 2019 WL 4 6310564, at *2 (W.D. Wash. Nov. 25, 2019) (citing Volkswagenwrek Aktiengesellschaft v.
5 Schlunk, 486 U.S. 694, 698–99 (1988)). “[T]he Hague Service Convention specifies certain 6 approved methods of service and ‘pre-empts inconsistent methods of service’ wherever it 7 applies.” Water Splash v. Menon, 137 S. Ct. 1504, 1507 (2017) (quoting Schlunk, 486 U.S. at 8 699). The Hague Service Convention does not apply in cases where the defendant’s address “is 9 not known.” Hague Service Convention art. 1. “The Hague Convention does not expressly 10 permit service by email.” Amazon.com Inc. v. Robojap Tech. LLC, No. 2:20-cv-00694, 2021 WL 11 4893426, at *2 (W.D. Wash. Oct. 20, 2021); see also id. at art. 10. China has objected to Article 12 10 of the Convention, which allows service by physical mail. 13 U.S. law also requires service to be “reasonably calculated” to notify a defendant of the 14 lawsuit, so they can have “an opportunity to present their objections.” Mullane v. Cent. Hanover
15 Bank & Trust Co., 339 U.S. 306, 314 (1950) (describing such notice as “[a]n elementary and 16 fundamental requirement of due process”). 17 III. DISCUSSION 18 In the Ninth Circuit, district courts have authority to determine when alternative service 19 of process should be granted in any given case. Rio Props, Inc. v. Rio Int’l Interlink, 284 F.3d 20 1007, 1016 (9th Cir. 2002). Factors courts consider when ruling on a motion for alternative 21 service under Rule 4(f)(3) include “whether the plaintiff identified a physical address for the 22 defendant, whether the defendant was evading service of process, and whether the plaintiff had 23 previously been in contact with the defendant.” Rubie’s Costume Co., 2019 WL 6310564, at *2
24 (collecting cases). 1 The Hague Convention applies to requests for service of process under Rule 4(f)(3). 2 See, e.g., Rio Props., Inc., 284 F.3d at 1015, n.4 (“A federal court would be prohibited from 3 issuing a Rule 4(f)(3) order in contravention of an international agreement, including the Hague 4 Convention . . . .”); Brockmeyer v. May, 383 F.3d 798, 801, 805 (9th Cir. 2004) (explaining that
5 Rule 4(f)(3) “authorizes the federal district court to direct any form of service that is not 6 prohibited by an international agreement,” while quoting Schlunk, 486 U.S. at 705, for the 7 proposition that “compliance with the [Hague] Convention is mandatory to all cases to which it 8 applies . . . .”). 9 Article 10 of the Hague Convention expressly permits service of process by mail. Hague 10 Service Convention art. 10; see also Water Splash Inc., 137 S. Ct. at 1513. However, courts 11 within the Ninth Circuit are divided on whether an objection by a signatory country to Article 10 12 of the Hague Convention means that the Convention prohibits service of process by email. 13 Compare Agha v. Jacobs, No. 5:07-cv-01800, 2008 WL 2051061, at *1–2 (N.D. Cal. May 13, 14 2008) (declining to authorize alternative service via email on German defendant because
15 Germany has objected to Article 10), with Rubie’s Costume Co., 2019 WL 6310564, at *3–4 16 (allowing email service on Chinese Defendants despite China’s objection to Article 10 of the 17 Hague Convention). 18 Here, even if the Court were inclined to circumvent the Hague Convention, Plaintiff has 19 failed to show that the district court should intervene in the present case at this time. See Rio 20 Props., Inc., 284 F.3d at 1016 (explaining that alternative service can only be authorized where a 21 party shows need based on the case’s “facts and circumstances”). The only effort Plaintiff has 22 made to serve Defendant was attempted service on a lawyer who no longer represents Defendant. 23 See Dkt. No. 12 at 2. Though Plaintiff does not state so explicitly, it appears that the only
24 physical address that Defendant has provided her was for that lawyer. See Dkt. No. 12-2 at 2.
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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 FANG CONG, CASE NO. 2:21-cv-01703-TL 12 Plaintiff, ORDER DENYING MOTION FOR v. EMAIL SERVICE 13 XUE ZHAO, 14 Defendant. 15
17 This matter comes before the Court on Plaintiff’s motion for leave to serve Defendant via 18 email (Dkt. No. 12). Having considered the relevant record and governing law, the Court DENIES 19 the motion. 20 I. BACKGROUND 21 Plaintiff Fang Cong, a Chinese citizen, is proceeding pro se (without an attorney) in this 22 case alleging copyright infringement of a logo and symbol Cong had designed, in violation of 17 23 U.S.C. § 504(b). See Dkt. No. 1-1 at 3–4, 6. On January 3, 2022, the Court granted her motion 24 1 for leave to proceed in forma pauperis. Dkt. No. 3. Defendant Xue Zhao is alleged to be a 2 developer and publisher who is also a citizen of China. Dkt. No. 1-1 at 3. 3 On March 3, 2022, Plaintiff filed the instant motion. Dkt. No. 12. In it, Plaintiff seeks 4 authorization to: (1) “service summons and other documents on the Defendant via Email ONCE
5 MORE;” and (2) to continue to serve Defendant via email without Defendant’s consent “until the 6 Defendant provides a new address.” Id. at 2–3 (emphasis in original). In support of this request, 7 Plaintiff cites to Rules 4(c)(1) and 4(m) of the federal rules of civil procedure (FRCP), as well as 8 previous attempts to serve a lawyer who used to represent Defendant. Id. at 2. 9 II. LEGAL STANDARD 10 FRCP 4(c)(1) states that plaintiffs are “responsible for having the summons and 11 complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to 12 the person who makes the service.” Fed. R. Civ. P. 4(c)(1). FRCP 4(m) provides a ninety-day 13 window in which plaintiffs must typically serve defendants; however, it explicitly “does not 14 apply to service in a foreign country under Rule 4(f) . . . .” Fed. R. Civ. P. 4(m). Under FRCP
15 4(f), individuals located outside of judicial districts of the United States may be served “by any 16 internationally agreed means of service that is reasonably calculated to give notice, such as those 17 authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial 18 Documents.” Fed. R. Civ. P. 4(f)(1). 19 The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents 20 (the “Hague Service Convention”) is an international treaty. See generally the Hague Service 21 Convention, opened for signature Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. 6638. China and the 22 United States have signed the Hague Convention. See Status Table, HCCH, 23 https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last updated June 17,
24 2021) (listing parties to the convention). “The Hague Convention requires signatory countries to 1 establish a Central Authority to receive requests for service of documents from other countries 2 and to serve those documents by methods compatible with the internal laws of the receiving 3 state.” Rubie’s Costume Co. v. Yiwu Hua Hao Toys Co., Ltd., No. 2:18-cv-01530, 2019 WL 4 6310564, at *2 (W.D. Wash. Nov. 25, 2019) (citing Volkswagenwrek Aktiengesellschaft v.
5 Schlunk, 486 U.S. 694, 698–99 (1988)). “[T]he Hague Service Convention specifies certain 6 approved methods of service and ‘pre-empts inconsistent methods of service’ wherever it 7 applies.” Water Splash v. Menon, 137 S. Ct. 1504, 1507 (2017) (quoting Schlunk, 486 U.S. at 8 699). The Hague Service Convention does not apply in cases where the defendant’s address “is 9 not known.” Hague Service Convention art. 1. “The Hague Convention does not expressly 10 permit service by email.” Amazon.com Inc. v. Robojap Tech. LLC, No. 2:20-cv-00694, 2021 WL 11 4893426, at *2 (W.D. Wash. Oct. 20, 2021); see also id. at art. 10. China has objected to Article 12 10 of the Convention, which allows service by physical mail. 13 U.S. law also requires service to be “reasonably calculated” to notify a defendant of the 14 lawsuit, so they can have “an opportunity to present their objections.” Mullane v. Cent. Hanover
15 Bank & Trust Co., 339 U.S. 306, 314 (1950) (describing such notice as “[a]n elementary and 16 fundamental requirement of due process”). 17 III. DISCUSSION 18 In the Ninth Circuit, district courts have authority to determine when alternative service 19 of process should be granted in any given case. Rio Props, Inc. v. Rio Int’l Interlink, 284 F.3d 20 1007, 1016 (9th Cir. 2002). Factors courts consider when ruling on a motion for alternative 21 service under Rule 4(f)(3) include “whether the plaintiff identified a physical address for the 22 defendant, whether the defendant was evading service of process, and whether the plaintiff had 23 previously been in contact with the defendant.” Rubie’s Costume Co., 2019 WL 6310564, at *2
24 (collecting cases). 1 The Hague Convention applies to requests for service of process under Rule 4(f)(3). 2 See, e.g., Rio Props., Inc., 284 F.3d at 1015, n.4 (“A federal court would be prohibited from 3 issuing a Rule 4(f)(3) order in contravention of an international agreement, including the Hague 4 Convention . . . .”); Brockmeyer v. May, 383 F.3d 798, 801, 805 (9th Cir. 2004) (explaining that
5 Rule 4(f)(3) “authorizes the federal district court to direct any form of service that is not 6 prohibited by an international agreement,” while quoting Schlunk, 486 U.S. at 705, for the 7 proposition that “compliance with the [Hague] Convention is mandatory to all cases to which it 8 applies . . . .”). 9 Article 10 of the Hague Convention expressly permits service of process by mail. Hague 10 Service Convention art. 10; see also Water Splash Inc., 137 S. Ct. at 1513. However, courts 11 within the Ninth Circuit are divided on whether an objection by a signatory country to Article 10 12 of the Hague Convention means that the Convention prohibits service of process by email. 13 Compare Agha v. Jacobs, No. 5:07-cv-01800, 2008 WL 2051061, at *1–2 (N.D. Cal. May 13, 14 2008) (declining to authorize alternative service via email on German defendant because
15 Germany has objected to Article 10), with Rubie’s Costume Co., 2019 WL 6310564, at *3–4 16 (allowing email service on Chinese Defendants despite China’s objection to Article 10 of the 17 Hague Convention). 18 Here, even if the Court were inclined to circumvent the Hague Convention, Plaintiff has 19 failed to show that the district court should intervene in the present case at this time. See Rio 20 Props., Inc., 284 F.3d at 1016 (explaining that alternative service can only be authorized where a 21 party shows need based on the case’s “facts and circumstances”). The only effort Plaintiff has 22 made to serve Defendant was attempted service on a lawyer who no longer represents Defendant. 23 See Dkt. No. 12 at 2. Though Plaintiff does not state so explicitly, it appears that the only
24 physical address that Defendant has provided her was for that lawyer. See Dkt. No. 12-2 at 2. 1 Plaintiff has not alleged that Defendant’s physical address is unknown after making reasonable 2 efforts to find an alternative address, and she has not documented any other efforts to find a 3 physical address to serve Defendant. 4 IV. CONCLUSION
5 For the above reasons, the Court DENIES the motion for email service without prejudice. 6 Plaintiff is INSTRUCTED to either (1) re-file her motion with information explaining the efforts 7 she has made to find an alternative physical address for Defendant by September 16, 2022, or 8 (2) take all steps necessary to serve Defendant following the Hauge Convention, including 9 sending the necessary documents to the Central Authority designated by China by no later than 10 October 3, 2022. If Plaintiff chooses to serve Defendant following the Hague Convention and 11 Defendant does not appear or otherwise defend this case within six (6) months of service 12 through China’s Central Authority, Plaintiff may file another motion for alternative service that 13 shows proof that she followed the Hague Convention’s requirements in this first attempt at 14 serving Defendant.
15 Dated this 17th day of August 2022. 16 A 17 Tana Lin United States District Judge 18 19 20 21 22 23 24