Tracfone Wireless, Inc. v. Unlimited PCS Inc.

279 F.R.D. 626, 2012 WL 169762, 2012 U.S. Dist. LEXIS 8303
CourtDistrict Court, S.D. Florida
DecidedJanuary 11, 2012
DocketNo. 12-cv-20013
StatusPublished
Cited by6 cases

This text of 279 F.R.D. 626 (Tracfone Wireless, Inc. v. Unlimited PCS Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida 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. Unlimited PCS Inc., 279 F.R.D. 626, 2012 WL 169762, 2012 U.S. Dist. LEXIS 8303 (S.D. Fla. 2012).

Opinion

ORDER DIRECTING SERVICE OF PROCESS PURSUANT TO FED. R. CIV. P. 4(f)(1) AND 4(f)(2)(C)(ii)

URSULA UNGARO, District Judge.

This cause having come before the Court on the Motion (“Mot.”) of Plaintiff, TracFone Wireless, Inc. (“TracFone” or “Plaintiff’) for entry of an order directing the Clerk’s office to (1) pursuant to Fed.R.Civ.P. 4(f)(1), request service under the Hague Service Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”) of the complaint and summons on Defendant Techno-park Co. Ltd. (“Technopark”), a foreign corporation (“Technopark” or “Defendant”) and (2) pursuant to Fed.R.Civ.P. 4(f)(2)(C)(ii), dispatch a copy of the complaint, summons, and order via United States international express mail for service upon Technopark (D.E. 6).

Introduction

TracFone’s complaint alleges that TracFone brought this action against the Defendants as a result of the Defendants’ unlawful business enterprise involving the unauthorized trafficking of devices used to unlock/reflash TracFone’s federally trademarked prepaid wireless telephones. Compl. at ¶ 2. TracFone further alleges that one of the four defendants in this case— Technopark—is a foreign corporation, with its place of business located at Rooms 2905-06, 29/FL, 69 Jervois Street, Sheung Wan, Hong Kong. Compl. at ¶ 12. TracFone alleges that Technopark regularly transacts business in the United States, including within Florida but has not appointed a registered agent for service of process in Florida, or in any other state. Mot. at ¶ 3.

The same day it filed its complaint, TracFone moved the Court for entry of an order directing the Clerk to dispatch the complaint and summons to the Hong Kong Central Authority, pursuant to Fed.R.Civ.P. 4(f)(1); and to dispatch the complaint and summons directly to Technopark by international mail and FedEx, pursuant to Fed. R.Civ.P. 4(f)(1) and the Hague Service Convention, of the complaint and summons on Technopark.1

[628]*628 Service Pursuant To FedJR,.Civ.P. 4(f)(1)

TracFone first request is that the Court direct the Clerk of this Clerk to issue a request under the Hague Service Convention for the Hong Kong Central Authority to effect service on Defendant, pursuant to Fed. R.Civ.P. 4(f)(1).

The Court begins by confirming that Hong Kong is a party to the Hague Service Convention. On this opening issue, the Court takes particular note of the detailed opinion entered by Judge Edmund V. Ludwig of the Eastern District of Pennsylvania in Willis v. Magic Power Co., Ltd., No. 10-4275, 2011 WL 66017, at *2 (E.D.Pa. Jan. 7, 2011). Judge Ludwig’s opinion in Willis carefully details the history of the Hong Kong’s accession to the Hague Service Convention and the fact the such accession continued to remain in place even after Hong Kong transferred to Chinese sovereignty. The court noted that “[t]he Hague Service Convention was extended to Hong Kong by the United Kingdom on May 20, 1970, and became effective as to Hong Kong on July 19, 1970.” Id. The court further noted that “[o]n June 10, 1997, China notified the Netherlands government, the official depository for the Hague Convention, that upon transfer of Hong Kong’s sovereignty to China, the Hague Service Convention would continue to be applicable to Hong Kong.” Id. This Court agrees with Judge Ludwig’s reasoning and conclusions in Willis.

As the Court is satisfied that Hong Kong is a member of the Hague Service Convention, the Court notes that it is required to follow mandate from the United States Supreme Court holding that transmittal of documents for service abroad must be made pursuant to the provisions of the Hague Service Convention. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988).

TracFone states that it is requesting the Court’s assistance in initiating the process of effectuating service through the Hong Kong Central authority because a judicial officer must initiate the request to the Hong Kong Central Authority to effect service under the Hague Service Convention. On this issue the Court agrees with TracFone’s proffer. As demonstrated by the information submitted with TracFone’s motion, the Hague Convention status page for Hong Kong demonstrates that Hong Kong’s Central Authority (the Chief Secretary for Administration) requires that the request for service of process must come from “Judicial officers, officials or other competent persons.” See China (Hong Kong)—Other Authority (Art. 18) & Practical Information, http ://www.hcch.net/index_en. php?act=authorities.details&aid=393 (last visited January 3, 2012).

Accordingly, as set forth more fully in the “Relief’ section of this order, the Court hereby directs the Clerk of Court to dispatch of the summons and complaint to the Hong Kong Central authority to serve Technopark.

Service by Postal Channel Pursuant to FedJR.Civ.P. 4(f)(2)(C)(ii)

TracFone also requests that, in addition to service pursuant to Fed. R. Civ. P 4(f)(1) though the Hong Kong Central authority, the Clerk be directed to dispatch a copy of the summons and complaint directly to Techno-park by international mail and FedEx.

In order to address this section of TracFone’s motion, the Court must address three questions: (1) can service of legal documents be made by mail under Article 10(a) of the Hague Convention; (2) if so, can such a manner of service be used in Hong Kong; and, (3) if so, is FedEx a permitted postal channel in which to effectuate service of process?

Service by Postal Channel under Article 10(a): Generally

The first question this Court must address is: provided the destination country does not object, can U.S. legal documents be served by mail pursuant to Article 10(a) of the Hague Service Convention? At the outset, [629]*629the Supreme Court has held that the transmittal of documents for service abroad must be made pursuant to the provisions of the Hague Service Convention. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988).

The Court begins by reviewing two recent published opinions from this district finding that while service through the central authority of the destination state is one way to effectuate service, judicial documents may be sent by postal channels directly to persons abroad so long as country of service does not object. TracFone Wireless, Inc. v. Sunstrike Intern., Ltd., 273 F.R.D. 697, 699 (S.D.Fla.

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

Related

Birmingham v. Rofx.net
S.D. Florida, 2022
Ghostbed, Inc. v. Casper Sleep, Inc.
315 F.R.D. 689 (S.D. Florida, 2016)
Leon v. Continental AG
176 F. Supp. 3d 1315 (S.D. Florida, 2016)
Portalp International SAS v. Zuloaga
198 So. 3d 669 (District Court of Appeal of Florida, 2015)
Tracfone Wireless, Inc. v. Hernandez
126 F. Supp. 3d 1357 (S.D. Florida, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
279 F.R.D. 626, 2012 WL 169762, 2012 U.S. Dist. LEXIS 8303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracfone-wireless-inc-v-unlimited-pcs-inc-flsd-2012.