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Fujitsu Limited v. Belkin International


September 6, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Defendants D-Link Corporation and ZyXEL Communications Corporation (collectively "Moving Defendants") have each moved to dismiss pursuant to Rule 12(b)(5) for insufficient 21 service of process. See Dkt. No. 135 ("ZyXEL Corp. Mot."); Dkt. No. 136 ("D-Link Mot."). This 22 is now Moving Defendants' second set of motions to dismiss for insufficient process. The Court, 23 somewhat reluctantly in light of the fact that Moving Defendants have had notice of this action for 24 nearly a year and are represented by the same counsel as their U.S. counterparts who are also 25

Defendants in this action, determined that Plaintiff's first effort at service (i.e., by hand delivery of 26 the complaint and summons to Moving Defendants' Taiwanese headquarters) was insufficient 27 under the relevant section of Federal Rule of Civil Procedure 4. Moving Defendants, yet again, 28 seek dismissal for insufficient service, now arguing that Plaintiff's second effort at service (i.e., by the letters rogatory process and by having the Clerk of this Court send service of process to 2 Moving Defendants by a form of mail requiring signed receipt) is also insufficient. The Court 3 deems Moving Defendants' motions appropriate for resolution without oral argument pursuant to 4 2011 case management conference, however, remains as set. The Court rejects Moving 6 Defendants' arguments and DENIES their motions to dismiss. 7 place of business in Taiwan. There is no dispute that Moving Defendants have received actual 10 notice of this action. On October 15, 2010, Chi-yun Hsiao, an attorney in Taiwan, executed service of process on both D-Link Corp. and ZyXEL Corp. by hand delivering Fujitsu's complaint, summons, and other documents to D-Link Corp. and ZyXEL Corp.'s respective headquarters. A 13 Civil Local Rule 7-1(b), and vacates the September 8, 2011 motion hearing. The September 8, 5


Moving Defendants are corporations organized under the laws of Taiwan, with a principal D-Link Corp. employee signed a receipt dated October 15, 2010 for D-Link Corp. A ZyXEL Corp. 14 mailroom stamp served as acknowledgment of receipt for ZyXEL Corp. 15 16 dismiss Fujitsu's claims against it for insufficient service of process. On March 29, 2011, this 17 Fujitsu's service of process on October 15, 2010 was insufficient under Federal Rule of Civil 19 "prescribed" by Taiwanese law. Id. at 10-11. However, the Court found that there was a 21 reasonable prospect that service may yet be obtained through the letters rogatory process, and 22 therefore quashed Fujitsu's insufficient service to allow Fujitsu an opportunity to serve D-Link 23

On May 13, 2011, Fujitsu filed a motion for issuance of letter rogatory for both D-link Corp 25 and ZyXEL Corp. Dkt. No. 119. The Court granted this motion on May 31, 2011 without 26 opposition from any Defendant. Dkt. No. 132. Concurrent with the letters rogatory process, Fujitsu 27 also delivered a letter to the Clerk of this Court requesting service by international mail, along with 28 a signature of receipt required as to both Moving Defendants pursuant to Federal Rule of Civil

On November 5, 2010, D-Link Corp and ZyXEL Corp. moved pursuant to Rule 12(b)(5) to Court denied D-Link Corp and ZyXEL Corp's motions. Dkt. No. 101. The Court found that 18 Procedure 4(f)(2)(A) because it was not clear that hand delivery was a proper method of service 20 Corp. and ZyXEL Corp. in an alternate manner. 24 Case No.: 10-CV-03972-LHK Procedure 4(f)(2)(C)(ii) (allowing this method "unless prohibited by the foreign country's law"). 2

The Clerk of the Court mailed this service the same day, and filed a Declaration thereof. Dkts. Nos. 3

Nos. 127-28. On June 20, 2011, Moving Defendants filed the pending motion to dismiss for 5 insufficient service of process. Those motions are now ripe for the Court's review. 6 8 them should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(5) because Fujitsu's 9 attempted service through the Clerk of the Court is not a clearly prescribed method of service under 10 the laws of Taiwan, and thus not in compliance with Federal Rule of Civil Procedure 4(f)(2)(C).

May 31, 2011, three weeks prior to the filing of the Moving Defendants' pending motions. Fujitsu 14 argues that its service through the Clerk of the Court is sufficient under Federal Rule of Civil 15

Fujitsu contends that its letters rogatory process is still active and well under way. 17 19 requirement of service of summons must be satisfied." Omni Capital Int'l v. Rudolf Wolff & Co., 20 484 U.S. 97, 104, 108 S. Ct. 404, 98 L. Ed. 2d 415 (1987); see also Murphy Bros. v. Michetti Pipe 21 Stringing, 526 U.S. 344, 350, 119 S. Ct. 1322; 143 L. Ed. 2d 448 (1999) ("In the absence of service 22 of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a 23 party the complaint names as defendant."). "Once service is challenged, plaintiffs bear the burden 24 of establishing that service was valid under Rule 4." Brockmeyer v. May, 383 F.3d 798, 801 (9th 25 535, 538 (9th Cir. 1986)). Rule 4(h)(2) governs service of process on a corporation "at a place not 28 within any judicial district of the United States" and allows for such process to be made "in any 125-26. On May 31, 2011, Fujitsu filed a Return of Service for both Moving Defendants. Dkts. 4


Moving Defendants argue, in essentially identical motions, that Fujitsu's complaint against Inexplicably, Moving Defendants also argue that Fujitsu has abandoned its attempt to obtain letters United States District Court For the Northern District of California rogatory. As noted above, the Court granted Fujitsu's motion for issuance of letters rogatory on 13 Procedure 4(f)(2)(C)(ii) because the method is not prohibited by the laws of Taiwan. In addition, 16 A. Legal Standard "Before a federal court may exercise personal jurisdiction over a defendant, the procedural Cir. 2004) (citing 4A CHARLES A. WRIGHT & ARTHUR R. MILLER, Federal Practice and Procedure § 1083 (3d ed. 2002 & Supp. 2003); Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 27 manner prescribed by Rule 4(f) for serving an individual, except personal delivery under 2 (f)(2)(C)(i)." Fed. R. Civ. P. 4(h)(2). 3 corporation may be served, "unless prohibited by the foreign country's law, by using any form of 6 mail that the clerk addresses and sends to the individual and that requires a signed receipt." As 7 noted in the Court's Order of March 29, 2011, Fujitsu's prior attempt at service did not implicate 8 ZyXEL Corp." See March 29, 2011 Order at 5, n.5. Fujitsu concedes that service by a Clerk of the 10

The vast majority of cases to consider the issue have held that a method of service is not 13 prohibited under Rule 4(f)(2)(C)(ii) unless it is expressly prohibited by a foreign country's laws. 14 Rule 4(f)(2)(C) provides for service in a manner that, while not expressly prescribed by the laws of 16 a foreign country, is not prohibited by those laws."). In fact, at least four courts, including two 17 Rule 4(f)(2)(C)(ii). See Fujitsu Ltd. v. Nanya Tech. Corp. 2007 WL 484789, at *5 (N.D. Cal. Feb. 19 9, 2007); Power Integrations, 2004 U.S. Dist. LEXIS 25414, *8; see also Trueposition, Inc. v. 20 Dist. LEXIS 12914, *4-6 (D. N.H. August 20, 2001). The Court sides with this clear weight of 22 authority. The Court also concludes that Fujitsu's method of service is reasonably calculated to 23 give notice to the Moving Defendants of the pending action. See Fed. R. Civ. P. 4(f)(2) (providing 24 for various methods of service that are "reasonably calculated to give notice"). Indeed, it is 25 undisputed that Moving Defendants have had notice of this action since at least October 2010. 26 B. Fujitsu's Method of Service is Sufficient under Rule 4(f)(2)(C)(ii).

Here, Fujitsu seeks to rely on Rule 4(f)(2)(C)(ii). Under Rule 4(f)(2)(C)(ii), a foreign Rule 4(f)(2)(C)(ii) because "Fujitsu did not claim to have mailed its complaint to D-Link Corp or 9 Court is not expressly prescribed by Taiwan law. However, Fujitsu argues that its current method of service satisfies Rule 4(f)(2)(C)(ii) because it is not expressly prohibited. The Court agrees. 12

See, e.g., Power Integrations, Inc. v. Sys. Gen. Corp., 2004 U.S. Dist. LEXIS 25414, *8 ("Thus, 15

California district courts, have specifically held that Taiwan law does not prohibit service as per 18 Sunon, Inc. 2006 WL 1686635, at *5 (E.D. Pa. Jun. 14, 2006); Emery v. Wood Indus., 2001 U.S. 21 Moving Defendants urge the Court to consider the case, Prewitt Enters, Inc. v. Org. of Petroleum Exporting Countries, 224 F.R.D. 497, 502 (N.D. Ala. 2002). Prewitt, however, found 28 the foreign country to have "statutory language expressly prohibiting the method of service employed" by the plaintiff there, and thus found service under the method in Rule 4(f)(2)(C)(ii) 2 expressly prohibited. Id. at 502 n.6. Moving Defendants point to dicta in Prewitt suggesting that 3 the validity "of a given method of service depends on the judicial norms established by the foreign 4 national itself" and that, for example, skywriting as a means of service "would be deemed 5 unacceptable in any court." Id. The import of Prewitt's dictato the case at hand is unclear. 6

Fujitsu did not attempt service on Moving Defendants by skywriting over Taiwan. Rather, Fujitsu 7 requested that, concurrent with the letters rogatory process which it is still pursuing, the Clerk of 8 the Court mail Moving Defendants packages containing the complaint, summons, and other 9 documents, with each document in English and Mandarin Chinese. 10

The Court also rejects Moving Defendants peculiar argument that the Taiwan Relations Act, 22 U.S.C. §§3301, et seq., somehow prevents service of process pursuant to Rule 4(f)(2)(C)(ii). Section 3303(b)(4) of the Taiwan Relations Act reads: "Whenever the application of 13 the laws of the United States depends upon the law that is or was applicable on Taiwan or 14 compliance therewith, the law applied by the people on Taiwan shall be considered the applicable 15 law for that purpose." As Fujitsu argues, the Taiwan Relations Act does not override Rule 16 4(f)(2)(C)(ii) as a valid method of service of process. The Taiwan Relations Act has no bearing on 17 service of process at all, and Moving Defendants have cited no cases supporting this strained 18 argument. Section 3302(b)(4) merely attempts to ensure that Taiwan law is still considered when 19 22 U.S.C. § 3303(a) ("The absence of diplomatic relations or recognition shall not affect the 21 application of the laws of the United States with respect to Taiwan, and the laws of the United 22 States shall apply with respect to Taiwan in the manner that the laws of the United States applied 23 with respect to Taiwan prior to January 1, 1979."). Thus, as it would for any other country with 24 which the U.S. had not severed diplomatic relations, the Court must examine whether Taiwan law 25 prohibits service by mail by the Clerk of the Court. The answer is no. 26 27 28

U.S. law calls for the consideration of foreign law, despite the absence of diplomatic relations. See 20


For the foregoing reasons, the Court DENIES Moving Defendants' motions to dismiss for 3 insufficient service of process. The September 8, 2011 motion hearing is vacated. The September 4 8, 2011 case management conference remains as set. 5

By 8:00 p.m., Wednesday, September 7, 2011, the Court orders the parties to provide a 6 joint supplemental case management conference statement identifying: (1) the date for their 7 mediation, as provided for in the July 27, 2011 Case Management Order; and (2) in light of the 8 instant Order denying Moving Defendants' motions to dismiss, a joint proposal for expedited fact 9 discovery with respect to D-Link Corp. and ZyXEL Corp. 10


United States District Court For the Northern District of California


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