Look Before You Jump: Judge Ho Rules Hague Convention Applies Where Plaintiff Was Not “Reasonably Diligent” in Finding Defendants’ Addresses | Patterson Belknap Webb & Tyler LLP
On June 17, 2024, United States District Court Judge Dale E. Ho ruled on several motions related to Plaintiff Spin Master, Ltd.’s service of process on Defendants Leqiong, Monkki, Onecemore, Chenghai Lucky Boy Toys Co., Ltd. (“Chenghai”), Yucmed Store, Aomore-US, and Ropwol (collectively, “Defendants”). In analyzing the application of the Hague Convention, the Court vacated an earlier Alternative Service Order because Plaintiff did not show “reasonable diligence” in searching for Defendants’ addresses.
In a complaint filed on August 11, 2023, Plaintiff accused Defendants of infringing various patents related to wall-climbing toy vehicles. On August 17, 2023, Plaintiff asked Michael Feigin, an American attorney who was communicating on behalf of Chenghai with Plaintiff, whether Feigin would accept service of the Complaint for Defendants. Feigin declined, stating that he was not authorized to accept service, and clarified that he only represented Chenghai. Plaintiff hired a third party to locate Defendants’ foreign addresses. That third party reported that Defendants’ addresses on Amazon’s website did not “appear[] to be accurate or complete.” Plaintiff thereafter filed a motion for alternative service of process under FRCP 4(f)(3), stating that Defendants’ addresses were “not known.” The Court granted Plaintiff’s motion, allowing alternative service on Chenghai through Feigin, and allowing alternative service on the other Defendants via e-mail.
Defendants filed, inter alia, a motion to vacate the Court’s Alternative Service Order. At oral argument, the Court asked how Plaintiff verified that the consulting firm “made reasonable efforts to ensure that Defendants’ addresses were not known.” Plaintiff stated that it was not aware of the steps the consulting firm took to discover the addresses.
The Court granted Defendants’ motion to vacate the Alternative Service Order and quashed service on Defendants. In doing so, the Court noted that pursuant to FRCP 4(f), service outside the United States can be accomplished via “internationally agreed means of service” like the Hague Convention, another method “that is reasonably calculated to give notice,” or “by other means not prohibited by international agreement, as the court orders.” In order to demonstrate that the Hague Convention was inapplicable in this case, Plaintiff needed to demonstrate that Defendants’ addresses were unknown after exercising “reasonable diligence to discover” those addresses. The Court held that Plaintiff was not reasonably diligent because it could not to explain what steps were taken to find the Defendants’ foreign addresses: “Plaintiff did not explain the basis for [its] assessment, or what steps, if any, [consulting firm] took to confirm this appearance of inaccuracy.” As such, service under the Hague Convention was required.
The case is Spin Master, Ltd. V. Aomore-US, Case No. 23 Civ. 7099 (DEH), 2024 BL 206300 (S.D.N.Y. June 17, 2024)
