United States District Court, N.D. California
ORDER GRANTING PLAINTIFFS' MOTION TO DEEM SERVICE EFFECTUATED AS TO DEFENDANTS SKONE LIGHTING CO., LTD. AND SAILING MOTOR CO., LTD. (DKT. NO. 121)
EDWARD M. CHEN, District Judge.
Presently before the Court is Plaintiffs d.light, Inc. and d.light design, Ltd.'s Motion to Deem Service Effectuated as to Defendants Skone Lighting, Co., Ltd. and Sailing Motor Co., Ltd. The Court hereby GRANTS the Motion to Deem Service Effectuated as to Skone Lighting, Co., Ltd. and Sailing Motor Co., Ltd.
Plaintiffs d.light, Inc. and d.light design, Ltd. (collectively "d.light") brought this action against Defendants, nine China-based companies, for patent infringement, trade dress infringement, false advertising, and unfair competition. Plaintiffs also brought a trademark infringement action against Defendants Qingdao and Power-Solution. Docket No. 1 (Complaint) ¶ 1. Plaintiffs allege that all Defendants knowingly and willfully infringed upon Plaintiffs' intellectual property rights in the design of d.light's solar energy products. Id. ¶ 2.
On November 12, 2014, Plaintiffs filed a motion requesting the Court to enter an Order deeming service of process effectuated by email on four Defendants (Qingdao Sunflare New Energy Co., Ltd., Skone Lighting Co., Ltd., Sailing Motor Co., Ltd., and Guangzhou LF Sky Energy Technology Co., Ltd.). Docket No. 121 (Motion to Deem Service Effectuated by Email). At the hearing on December 18, 2014, for the reasons stated on the record, the Court granted Plaintiffs' motion as to Defendants Qingdao Sunflare and Guangzhou LF Sky but denied the motion without prejudice as to Defendants Skone Lighting and Sailing Motor. Docket No. 129 (Hearing Transcript) 14:14-16; see also Docket No. 124. With the Court's leave, Plaintiffs submitted supplemental briefing as to why the motion should be granted as to Skone Lighting and Sailing Motor. Docket No. 137.
A. Legal Standard
Unless federal law provides otherwise, Federal Rule of Civil Procedure 4(f)(3) permits service on individuals in a foreign country "by other means not prohibited by international agreement, as the court orders." Fed.R.Civ.P. 4(f)(3). The Ninth Circuit has interpreted Rule 4(f)(3) to allow service on foreign defendants by email where the defendants were unreachable by other means or had no known physical address. Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1017 (9th Cir. 2002). To establish that service of process by email is appropriate in a given case, a plaintiff must show that (1) international agreement does not prohibit service by email; and (2) that service by email is "reasonably calculated to provide actual notice" to the defendant. Id. at 1016, 1014. See also ADT Sec. Services, Inc. v. Security One Intern., Inc., No. 11 CV 05149 YGR, 2012 WL 3580670, at *3 (N.D. Cal. 2012); In re LDK Solar Securities Litigation, No. C 07 05182 WHA, 2008 WL 2415186, at *4 (N.D. Cal. 2008); Facebook, Inc. v. Banana Ads, LLC, No. C 11 3619 YGR, 2012 WL 1038752, at *2 (N.D. Cal. 2012).
The second requirement, that service by email must be "reasonably calculated, under all the circumstances, to apprise the interested parties of the action and afford them an opportunity to present their objections, " is necessary to satisfy constitutional due process norms. Rio Properties, 284 F.3d at 1016. Rio Properties acknowledged the "limitations" of email as a method of service. Id. at 1018. Rio Properties committed the task of balancing the limitations and benefits of email service in a particular case to the discretion of the district court. Id.
B. International Agreement Does Not Prohibit Email Service
China is a party to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. China has objected to Article 10 of the Hague Convention, which allows service to be effected by postal channels. See "Table Reflecting Applicability of Articles 8(2), 10(a)(b) and (c), 15(2) and 16(3) of the Hague Service Convention, " available at http://www.hcch.net/upload/applicability14e.pdf, last visited January 26, 2014. As a result, it is not clear whether service by email to Chinese citizens would satisfy the Hague Convention where the Hague Convention applies. See Agha v. Jacobs, No. C 07 1800 RS, 2008 WL 2051061, at *2 (N.D. Cal. 2008) (declining to distinguish email and "postal channels" where defendants lived in a country that objected to Article 10 of the Hague Convention and the plaintiff knew the addresses of the defendants in Germany).
In this case, however, despite Plaintiffs' diligent effort to locate the addresses of Defendants, the physical addresses of Skone Lighting and Sailing Motor remain unknown. Because the physical addresses of these Defendants are unknown, the Hague Convention does not apply. Art. 1, 20 U.S.T. 361, 658 U.N.T.S. 163; see also Liberty Media Holdings, LLC. v. Sheng Gan, No. 11 CV 02754 MSK KMT, 2012 WL 122862, at *3 (D. Colo. 2012) (holding that the Hague Convention does not apply to defendant who lived in China and whose address was unknown); United States v. Distribuidora Batiz CGH, S.A. De C.V., No. 07cv370-WQH-JMA, 2011 WL 1561086, at *5 (S.D. Cal. 2011). Absent the application of the Hague Convention, it is not apparent that any international agreement applies in this case. International agreement does not, therefore, prohibit service of process by email. See Rio Properties, 284 F.3d at 1014.
C. Service by Email is "Reasonably Calculated to Provide Actual Notice" to Defendants Skone Lighting and Sailing Motor
The Court also finds that service by email is reasonably calculated to provide actual notice to Defendants Skone Lighting and Sailing Motor. The Court has reviewed Plaintiffs' supplemental briefing and concludes that Plaintiffs have proffered adequate additional support to demonstrate that the ...