TracFone Wireless, Inc. v. AU Optronics Corp.

270 F.R.D. 535
CourtDistrict Court, N.D. California
DecidedNovember 2, 2010
DocketNos. M 07-1827 SI, C 10-3205 SI; MDL. No. 1827
StatusPublished
Cited by3 cases

This text of 270 F.R.D. 535 (TracFone Wireless, Inc. v. AU Optronics Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TracFone Wireless, Inc. v. AU Optronics Corp., 270 F.R.D. 535 (N.D. Cal. 2010).

Opinion

[536]*536ORDER GRANTING PLAINTIFF’S MOTION TO SERVE DEFENDANTS CHUNGHWA PICTURE TUBES THROUGH ITS U.S. COUNSEL

SUSAN ILLSTON, District Judge.

Plaintiff has filed a motion to serve a foreign defendant, Chunghwa Picture Tubes Ltd., through its U.S. counsel pursuant to Federal Rule of Civil Procedure 4(f)(3).1 The parties stipulated to submit the motion without oral argument, and accordingly the November 4, 2010 hearing on this motion is VACATED. For the reasons set forth below, the Court GRANTS the motion.

BACKGROUND

On May 4, 2010, plaintiff TracFone filed an individual complaint in the Southern District of Florida against numerous domestic and foreign defendants, including Chunghwa Picture Tubes (“Chunghwa”), for violations of state and federal antitrust laws. Pursuant to the Judicial Panel on Multidistriet Litigation’s April 20, 2007 transfer order consolidating pretrial proceedings for a number of actions and this Court’s July 3, 2007 related case pretrial order # 1, the ease was transferred to this District, and the Clerk of this Court designated this case as related to MDL No. 1827, M 07-1827.

Chunghwa is a foreign corporation with headquarters in Taiwan. Taiwan is not a signatory to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents (“Hague Convention”), and thus service cannot be effected on Chunghwa pursuant to the Hague Convention. On May 13, 2010, plaintiff sent all defendants, including Chunghwa, requests to waive service of summons. In a stipulation filed on July 26, 2010, 17 defendants stipulated to the waiver of service of process of the complaint. Chunghwa did not join in the stipulation, thus prompting the instant motion. Plaintiff has not attempted to initiate service on Chunghwa through the letter rogatory process.

DISCUSSION

Plaintiff has moved to serve Chunghwa through its U.S. counsel pursuant to Federal Rule of Civil Procedure 4(f)(3). Rule 4(f)(3) permits service in a place not within any judicial district of the United States, “by ... means not prohibited by international agreement as may be directed by the court.” Fed.R.Civ.P. 4(f)(3).2 Chunghwa argues that before plaintiff can seek to serve it through its U.S. counsel, plaintiff must first attempt to personally serve Chunghwa via the letter rogatory process at its Taiwan address.

[537]*537Plaintiff contends that service through defendant’s U.S. counsel is appropriate because of the substantial difficulty, time and expense that plaintiff would face in serving the foreign defendants in Taiwan, and the need to coordinate discovery in this ease and the MDL. Plaintiff has submitted a declaration from David Esau, counsel for plaintiff. Mr. Esau states that Legal Language Services has provided his law firm with an estimate of the cost of obtaining Chinese translations of plaintiffs complaint and other documents, and of the cost of effecting service of process on Chunghwa pursuant to letters rogatory. Esau Decl. ¶ 15. According to the Legal Language Services estimate, TraeFone will incur a charge of at least $6,215.00 for translating TraeFone’s Complaint and the other documents associated with the TraeFone action into Chinese for Chunghwa. Id. Ex. E (estimate). Legal Language Services also estimates that TraeFone will incur charges of at least $3,720 for processing the letters rogatory for Chunghwa and for paying the fees required by the U.S. Department of State for service on that entity. Id. In addition, Mr. Esau states that according to the Legal Language Services estimate, “service of TraeFone’s Complaint and other documents associated with the TraeFone Action by the letter rogatory process could take at least four (4) to seven (7) months to complete.” Id. ¶ 18.

Based upon the circumstances presented here, the Court finds that it is appropriate to order service on Chunghwa through its U.S. counsel. The Ninth Circuit has rejected the argument that “Rule 4(f) should be read to create a hierarchy of preferred methods of service of process. [Appellantj’s interpretation would require that a party attempt service of process by those methods enumerated in Rule 4(f)(2), including diplomatic channels and letters rogatory, before petitioning the court for alternative relief under Rule 4(f)(3). We find no support for [this] position. No such requirement is found in the Rule’s text, implied by its structure, or even hinted at in the advisory committee notes.” Rio Properties, Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1014-15 (9th Cir.2002). The Ninth Circuit concluded “that service of process under Rule 4(f)(3) is neither a ‘last resort’ nor ‘extraordinary relief.’ It is merely one means among several which enables service of process on an international defendant.” Id. at 1015 (internal citation omitted). To the extent that defendant relies on the 1993 Advisory Committee Notes to argue that plaintiff must show “urgency” in order to warrant alternative service, the Court disagrees. Rio Properties held that district courts have “sound discretion” to determine when the “particularities and necessities of a given case require alternate service of process under Rule 4(f)(3)” and noted that “trial courts have authorized a wide variety of alternative methods of service including publication, ordinary mail, mail to the defendant’s last known address, delivery to the defendant’s attorney, telex, and most recently, email.” Id. at 1016. In any event, the portion of the 1993 Advisory Committee Notes that defendant quotes presents a hypothetical involving the Hague Convention, which is inapplicable here because Taiwan is not a signatory to that agreement.

Plaintiff has shown that service by letters rogatory is more expensive and time-consuming than serving defendant’s counsel. As plaintiff notes, earlier in the MDL the direct purchaser plaintiffs spent many months attempting to effect service on some Taiwanese defendants through the letter rogatory process, and this process proved time-consuming, expensive, and burdensome. See Docket No. 725 (Order Re: Defendant Nexgen Mediatech Inc.’s Motion to Dismiss for Insufficient Service of Process; Quashing Service; and Granting Direct Purchaser Plaintiffs’ Motion to Serve Nexgen Through its Counsel under Fed.R.Civ.P. 4(f)(3)).3 In light of the [538]*538availability of alternative, speedier relief under Rule 4(f)(3), the Court finds that there is no reason to require service through letters rogatory in the instant action, particularly given the stage of the litigation in the MDL and the significant discovery that is already underway in those proceedings. This action has been consolidated with the MDL and is now part of a coordinated discovery schedule. Until TracFone is able to serve Chunghwa, TracFone will not be able to coordinate and participate in discovery against Chunghwa with the other plaintiffs.

The Court also finds that service on Chunghwa through its U.S. counsel comports with due process.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fenner v. General Motors LLC
E.D. Michigan, 2020
Fujitsu Ltd. v. Belkin International, Inc.
782 F. Supp. 2d 868 (N.D. California, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
270 F.R.D. 535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracfone-wireless-inc-v-au-optronics-corp-cand-2010.