1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NJOY, LLC, Case No. 24-cv-0397-BAS-JLB
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. EX PARTE APPLICATION FOR LEAVE TO SERVE DEFENDANT 14 IMIRACLE (HK) LTD., et al., UNDER RULE 4(f)(3) (ECF No. 24) 15 Defendants. 16 17 Plaintiff NJOY, LLC moves, ex parte, for an order authorizing alternative service 18 using email pursuant to Federal Rule of Civil Procedure 4(f)(3) to serve Defendants 19 Imiracle (HK) Limited; Shenzhen iMiracle Technology Co., Ltd.; Shenzhen Weiboli 20 Technology Co. Ltd.; Vapeonly Technology Co. Ltd.; Guangdong Qisitech Co, Ltd.; and 21 Shenzhen Han Technology Co., Ltd. (collectively the “Chinese Defendants”). (ECF No. 22 24.) For the reasons herein, the Court DENIES Plaintiff’s motion. (ECF No. 24.) 23 24 I. BACKGROUND 25 Plaintiff commenced this action on February 28, 2024. (Compl., ECF No. 1.) 26 Plaintiff alleges that the Chinese Defendants manufacture, market, and distribute flavored 27 disposable vapor devices (“e-cigarettes”) in California and the United States. (ECF No. 28 24 at 3.) Plaintiff alleges California has banned flavored tobacco products and the U.S. 1 Food and Drug Administration (“FDA”) has not approved the sale of Defendants’ e- 2 cigarettes. (Compl. at 10–15.) Plaintiff claims violations of California Unfair 3 Competition Law and the Prevent All Cigarette Trafficking Act and seeks injunctive 4 relief, restitution, and unlawfully obtained profits. (Id. at 32–38.) 5 On March 21, 2024, Plaintiff filed the instant motion seeking leave to effect 6 alternative service upon the Chinese Defendants by email pursuant to Rule 4(f)(3). (ECF 7 No. 24.) Plaintiff has begun the process for formal service under the Hague Convention 8 but notes the process will take at least six months and potentially much longer. (Id. at 1.) 9 Citing delay, Plaintiff seeks permission to serve the Chinese Defendants by emailing the 10 public communication email addresses on the Chinese Defendants’ websites or emailing 11 the Chinese Defendants’ counsels of record in other U.S. proceedings. (Id. at 2.) 12 II. DISCUSSION 13 Under Rule 4(h)(2), if a corporation is served outside any judicial district of the 14 United States, it must be served “in any manner prescribed by Rule 4(f) for serving an 15 individual, except under (f)(2)(C)(i).” Rule 4(f) permits service on an individual, other 16 than a minor, an incompetent person, or a person whose waiver has been filed, at a place 17 not within any judicial district of the United States, by one of three means. See Fed. R. 18 Civ. P. 4(f)(1)–(3). Of the methods Rule 4(f) permits, it “does not denote any hierarchy 19 or preference of one method of service over another.” Rio Props., Inc. v. Rio Int’l 20 Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). 21 Plaintiff seeks to effect service under Rule 4(f)(3) which permits service on an 22 individual located abroad “by other means not prohibited by international agreement, as 23 the court orders.” Cf. Rio Props., 284 F.3d at 1015 n.4 (9th Cir. 2002) (“A federal court 24 would be prohibited from issuing a Rule 4(f)(3) order in contravention of an international 25 agreement, including the Hague Convention, referenced in Rule 4(f)(1).”). The 26 Defendants here are located in China, which is a signatory to the Convention on the 27 Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 28 1 (the “Hague Convention” or the “Convention”), opened for signature Nov. 15, 1965, 20 2 U.S.T. 361, 658 U.N.T.S. 163. 3 The Hague Convention aims to “simplify, standardize, and generally improve the 4 process of serving documents abroad” by specifying approved methods of service. See 5 Water Splash, Inc. v. Menon, 581 U.S. 271, 273 (2017). Service under the Hague 6 Convention is mandatory for all “civil or commercial matters, where there is occasion to 7 transmit a judicial or extrajudicial document for service abroad.” Hague Convention, 8 Art. 1. Because the United States is a signatory, by virtue of the Supremacy Clause, the 9 Supreme Court has found the Hague Convention is mandatory federal law and preempts 10 inconsistent methods of service prescribed by state law where the Convention applies. 11 See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) 12 (citing Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court, 482 U.S. 522, 534 13 n. 15 (1987)). Under the terms of the Hague Convention, service abroad must usually be 14 performed by a receiving county’s “Central Authority” who effects service in the member 15 country. See Brockmeyer v. May, 373 F.3d 798, 801 (9th Cir. 2004). This is commonly 16 referred to as “Hague service.” 17 There is some dispute among district courts as to whether the Hague Convention 18 proscribes service via email through Rule 4(f)(3) and whether service via email may still 19 be permitted for entities located in China. The Ninth Circuit has not yet addressed either 20 question. First, for when a manner of service does not fall into any of the categories 21 mentioned in the Hague Convention, courts disagree as to whether those methods are 22 prohibited. See Media Trademark & Licensing Ltd. v. COINGEEKLTD.COM, No. CV- 23 21-00214-PHX-DWL, 2021 WL 2895289, at *4 (D. Ariz. July 9, 2021) (gathering cases). 24 Service via electronic means is not mentioned in the Convention, which was drafted in 25 the 1960s. Some courts hold unless the Convention explicitly prohibits a method of 26 service, those means “are not prohibited by international agreement” under Rule 4(f)(3). 27 See, e.g., Rubie’s Costume Co. v. Yiwu Hua Hao Toys Co., 2019 WL 6310564, at *2 28 (W.D. Wash. Nov. 25, 2019); Karsten Mfg. Corp. v. Store, No. 18-61624-CIV, 2018 WL 1 8060707, at *1 (S.D. Fla. July 26, 2018). Because the Hague Convention does not 2 describe service via email, courts are then free to order alternative service. 3 In contrast, other courts find the Hague Convention enables only certain methods 4 of service while prohibiting all others. These courts find the positive language of the 5 Convention necessarily precludes other, non-enumerated methods of service. See, e.g., 6 Facebook Inc. v. 9 Xiu Network (Shenzhen) Tech. Co., 480 F. Supp. 3d 977, 983–87 7 (N.D. Cal. 2020). In particular, these courts emphasize the Convention’s text demands it 8 “shall apply in all cases, in civil or commercial matters” such that methods of service 9 outside the Convention are expressly prohibited. See Lonati, S.P.A. v. Soxnet, Inc., No. 10 CV 20-5539-GW-JPRX, 2021 WL 9839477, at *3 (C.D. Cal. Sept. 9, 2021). The Court 11 finds this line of reasoning persuasive. The Hague Convention identified particular, 12 permissible methods of service. It would run contrary to the text and thrust of the 13 Convention to require signatories to affirmatively object to all other, possible methods of 14 service not enumerated by the Convention. 15 Second, some courts have interpreted the Hague Convention’s section on service 16 by mail to include service by email. Compare Agha v. Jacobs, No. C-07-1800-RS, 2008 17 WL 2051061, at *2 (N.D. Cal. May 13, 2008) (holding email service was prohibited 18 because Germany objected to service by mail under Article 10 of the Hague Convention 19 and service by email is not distinguishable from service by mail) with Rubie’s Costume, 20 2019 WL 6310564, at *3 (collecting cases where email service was not precluded by 21 China’s objection to Article 10 of the Hague Convention).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NJOY, LLC, Case No. 24-cv-0397-BAS-JLB
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. EX PARTE APPLICATION FOR LEAVE TO SERVE DEFENDANT 14 IMIRACLE (HK) LTD., et al., UNDER RULE 4(f)(3) (ECF No. 24) 15 Defendants. 16 17 Plaintiff NJOY, LLC moves, ex parte, for an order authorizing alternative service 18 using email pursuant to Federal Rule of Civil Procedure 4(f)(3) to serve Defendants 19 Imiracle (HK) Limited; Shenzhen iMiracle Technology Co., Ltd.; Shenzhen Weiboli 20 Technology Co. Ltd.; Vapeonly Technology Co. Ltd.; Guangdong Qisitech Co, Ltd.; and 21 Shenzhen Han Technology Co., Ltd. (collectively the “Chinese Defendants”). (ECF No. 22 24.) For the reasons herein, the Court DENIES Plaintiff’s motion. (ECF No. 24.) 23 24 I. BACKGROUND 25 Plaintiff commenced this action on February 28, 2024. (Compl., ECF No. 1.) 26 Plaintiff alleges that the Chinese Defendants manufacture, market, and distribute flavored 27 disposable vapor devices (“e-cigarettes”) in California and the United States. (ECF No. 28 24 at 3.) Plaintiff alleges California has banned flavored tobacco products and the U.S. 1 Food and Drug Administration (“FDA”) has not approved the sale of Defendants’ e- 2 cigarettes. (Compl. at 10–15.) Plaintiff claims violations of California Unfair 3 Competition Law and the Prevent All Cigarette Trafficking Act and seeks injunctive 4 relief, restitution, and unlawfully obtained profits. (Id. at 32–38.) 5 On March 21, 2024, Plaintiff filed the instant motion seeking leave to effect 6 alternative service upon the Chinese Defendants by email pursuant to Rule 4(f)(3). (ECF 7 No. 24.) Plaintiff has begun the process for formal service under the Hague Convention 8 but notes the process will take at least six months and potentially much longer. (Id. at 1.) 9 Citing delay, Plaintiff seeks permission to serve the Chinese Defendants by emailing the 10 public communication email addresses on the Chinese Defendants’ websites or emailing 11 the Chinese Defendants’ counsels of record in other U.S. proceedings. (Id. at 2.) 12 II. DISCUSSION 13 Under Rule 4(h)(2), if a corporation is served outside any judicial district of the 14 United States, it must be served “in any manner prescribed by Rule 4(f) for serving an 15 individual, except under (f)(2)(C)(i).” Rule 4(f) permits service on an individual, other 16 than a minor, an incompetent person, or a person whose waiver has been filed, at a place 17 not within any judicial district of the United States, by one of three means. See Fed. R. 18 Civ. P. 4(f)(1)–(3). Of the methods Rule 4(f) permits, it “does not denote any hierarchy 19 or preference of one method of service over another.” Rio Props., Inc. v. Rio Int’l 20 Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). 21 Plaintiff seeks to effect service under Rule 4(f)(3) which permits service on an 22 individual located abroad “by other means not prohibited by international agreement, as 23 the court orders.” Cf. Rio Props., 284 F.3d at 1015 n.4 (9th Cir. 2002) (“A federal court 24 would be prohibited from issuing a Rule 4(f)(3) order in contravention of an international 25 agreement, including the Hague Convention, referenced in Rule 4(f)(1).”). The 26 Defendants here are located in China, which is a signatory to the Convention on the 27 Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 28 1 (the “Hague Convention” or the “Convention”), opened for signature Nov. 15, 1965, 20 2 U.S.T. 361, 658 U.N.T.S. 163. 3 The Hague Convention aims to “simplify, standardize, and generally improve the 4 process of serving documents abroad” by specifying approved methods of service. See 5 Water Splash, Inc. v. Menon, 581 U.S. 271, 273 (2017). Service under the Hague 6 Convention is mandatory for all “civil or commercial matters, where there is occasion to 7 transmit a judicial or extrajudicial document for service abroad.” Hague Convention, 8 Art. 1. Because the United States is a signatory, by virtue of the Supremacy Clause, the 9 Supreme Court has found the Hague Convention is mandatory federal law and preempts 10 inconsistent methods of service prescribed by state law where the Convention applies. 11 See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) 12 (citing Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court, 482 U.S. 522, 534 13 n. 15 (1987)). Under the terms of the Hague Convention, service abroad must usually be 14 performed by a receiving county’s “Central Authority” who effects service in the member 15 country. See Brockmeyer v. May, 373 F.3d 798, 801 (9th Cir. 2004). This is commonly 16 referred to as “Hague service.” 17 There is some dispute among district courts as to whether the Hague Convention 18 proscribes service via email through Rule 4(f)(3) and whether service via email may still 19 be permitted for entities located in China. The Ninth Circuit has not yet addressed either 20 question. First, for when a manner of service does not fall into any of the categories 21 mentioned in the Hague Convention, courts disagree as to whether those methods are 22 prohibited. See Media Trademark & Licensing Ltd. v. COINGEEKLTD.COM, No. CV- 23 21-00214-PHX-DWL, 2021 WL 2895289, at *4 (D. Ariz. July 9, 2021) (gathering cases). 24 Service via electronic means is not mentioned in the Convention, which was drafted in 25 the 1960s. Some courts hold unless the Convention explicitly prohibits a method of 26 service, those means “are not prohibited by international agreement” under Rule 4(f)(3). 27 See, e.g., Rubie’s Costume Co. v. Yiwu Hua Hao Toys Co., 2019 WL 6310564, at *2 28 (W.D. Wash. Nov. 25, 2019); Karsten Mfg. Corp. v. Store, No. 18-61624-CIV, 2018 WL 1 8060707, at *1 (S.D. Fla. July 26, 2018). Because the Hague Convention does not 2 describe service via email, courts are then free to order alternative service. 3 In contrast, other courts find the Hague Convention enables only certain methods 4 of service while prohibiting all others. These courts find the positive language of the 5 Convention necessarily precludes other, non-enumerated methods of service. See, e.g., 6 Facebook Inc. v. 9 Xiu Network (Shenzhen) Tech. Co., 480 F. Supp. 3d 977, 983–87 7 (N.D. Cal. 2020). In particular, these courts emphasize the Convention’s text demands it 8 “shall apply in all cases, in civil or commercial matters” such that methods of service 9 outside the Convention are expressly prohibited. See Lonati, S.P.A. v. Soxnet, Inc., No. 10 CV 20-5539-GW-JPRX, 2021 WL 9839477, at *3 (C.D. Cal. Sept. 9, 2021). The Court 11 finds this line of reasoning persuasive. The Hague Convention identified particular, 12 permissible methods of service. It would run contrary to the text and thrust of the 13 Convention to require signatories to affirmatively object to all other, possible methods of 14 service not enumerated by the Convention. 15 Second, some courts have interpreted the Hague Convention’s section on service 16 by mail to include service by email. Compare Agha v. Jacobs, No. C-07-1800-RS, 2008 17 WL 2051061, at *2 (N.D. Cal. May 13, 2008) (holding email service was prohibited 18 because Germany objected to service by mail under Article 10 of the Hague Convention 19 and service by email is not distinguishable from service by mail) with Rubie’s Costume, 20 2019 WL 6310564, at *3 (collecting cases where email service was not precluded by 21 China’s objection to Article 10 of the Hague Convention). However, even if this 22 provision included email, it is ultimately irrelevant here because China objected to 23 service of process by mail. See Facebook, 480 F. Supp. 3d at 983. As follows, service 24 by email to entities in China appears proscribed by the Hague Convention. 25 Plaintiff must then pursue Hague service to the extent possible. While Plaintiff has 26 retained a translation service and emailed copies of the complaint to the Chinese 27 Defendants’ email addresses, Plaintiff has not tried and failed to effect Hague service. 28 (ECF No. 24-1 at 6–8.) Plaintiff insists service by email would reasonably apprise the I |/interested parties of the action, but email service does not meet Plaintiff's requirements 2 under the Hague Convention. (/d. at 10.) While Hague service may take additional time 3 |}and be cumbersome, it is mandatory. (/d. at 1.) Accordingly, the Court denies Plaintiffs 4 || motion to effect alternative service. 5 The Court, however, is mindful of the difficulties that can occur when serving 6 || parties outside of the United States. The Hague Convention recognizes that “the judge, 7 ||notwithstanding the provisions of the first paragraph of this Article, may give judgment 8 if no certificate of service or delivery has been received, if all of the following 9 ||conditions are fulfilled”: (1) the document was transmitted by one of the methods 10 || described by the Convention; (2) a period of no less than six months, as deemed adequate 11 || by the judge, has elapsed since the document was transmitted; and (3) no certificate of 12 kind has been received, although the transmitting party has made every reasonable 13 effort to obtain it through the authorities of the foreign state. Hague Convention, Art. 15. 14 || See also Media Trademark, 2021 WL 2895289, at *6. Further, the Hague Convention 15 ||}does not apply “where the address of the person to be served with the document is not 16 ||known.” J/d., Art. 1. If any of these exceptions emerge, it may allow for alternative 17 |}means of service under Rule 4(f)(3). Plaintiff, however, must first attempt to serve the 18 || Chinese Defendants through Hague service or through other permitted service channels. 19 || Therefore, resorting to alternative means of service under Rule 4(f)(3) 1s premature. 20 CONCLUSION 21 For the foregoing reasons, the Court DENIES Plaintiff's ex parte application to 22 effect service upon the Chinese Defendants through email under Rule 4(f)(3) without 23 || prejudice. Plaintiff is ORDERED to provide status updates to the Court every 90 days 24 || on its progress in effecting Hague Service. 25 IT IS SO ORDERED. 26 /\ yy 27 DATED: April 9, 2024 (yillig (Agha 6 28 United States District Judge