United States District Court, N.D. California
ORDER GRANTING PLAINTIFFS’ MOTION TO SERVE BY
ALTERNATIVE MEANS AND DENYING DEFENDANT'S MOTION TO
DISMISS FOR LACK OF SERVICE RE: DKT. NOS. 63, 66
HAYWOOD S. GILLIAM, JR. United States District Judge.
before the Court are two motions: (1) Plaintiffs Cheetah
Mobile, Inc., Cheetah Mobile America, Inc., and Cheetah
Technology Corporation’s motion to serve Defendant APUS
Group by alternative means and to extend the service deadline
(“Motion for Alternative Service”) and (2)
Defendant APUS Group’s cross-motion to dismiss for lack
of service (“Motion to Dismiss”). Dkt. Nos. 63,
66. For the reasons articulated below, Plaintiffs’
Motion for Alternative Service is GRANTED and
Defendant’s Motion to Dismiss is DENIED.
27, 2015, Plaintiffs filed a complaint alleging eleven causes
of action under California and federal law: (1) defamation;
(2) trade libel/product disparagement; (3) copyright
infringement; (4) false advertising; (5) trademark dilution
by tarnishment; (6) trademark dilution; (7) unfair
competition and business practices; (8) false and misleading
advertising; (9) unfair competition; (10) intentional
interference with prospective economic advantage; and (11)
intentional interference with contract. Dkt. No. 1.
Plaintiffs seek injunctive relief, monetary damages,
restitution, and attorney’s fees and costs.
have been attempting to serve Defendant unsuccessfully since
May 27, 2015. Mot. for Alternative Service at 1; Dkt. No.
63-1 (“Slenkovich Decl.”) ¶ 3. On the same
day that they filed their complaint, Plaintiffs attempted to
personally serve a copy of the complaint and summons upon
Defendant’s CEO, Mr. Tao Li, in Mountain View,
California, where he was attending a public event. Mot. for
Alternative Service at 2; Slenkovich Decl. ¶ 3. However,
the summons served upon Mr. Li was not signed by the clerk of
the court and did not bear the court’s seal. Dkt. No.
25-8; see also Slenkovich Decl. ¶ 6.
Accordingly, on October 21, 2015, this Court issued an order
quashing service and extending Plaintiffs’ deadline to
properly effectuate service to February 15, 2016. Dkt. No.
11, 2015, shortly after receiving notice that Defendant would
challenge Mr. Li’s service as ineffective, Plaintiffs
initiated service via the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638 (1969)
(the “Hague Convention”). Slenkovich Decl. ¶
4. The parties dispute the events surrounding the Chinese
authorities’ attempt to serve Defendant at the sole
physical address listed on Defendant’s website - No. 10
Wangjing Street, 42/F Area B, Tower 3, Wangjing SOHO,
Chaoyang District, Beijing, China 100015. However, it is
undisputed that an individual located at the aforementioned
address informed Chinese authorities that they were at the
incorrect location to serve “APUS GROUP.”
See Dkt. 63-6 (“Liu Decl.”) ¶ 7;
Dkt. 66-4 (“Pan Decl.”) ¶¶ 6-8.
Thereafter, Chinese authorities attempted to serve Defendant
at a second business address, but service was again
unsuccessful. See Mot. for Alternative Service at 4;
Pan Decl. ¶ 11.
February 15, 2016, deadline to effectuate service has passed,
and service has not been completed to date. On February 8,
2016, Plaintiffs filed the currently pending Motion for
Alternative Service. On February 25, 2016, Defendant filed
its opposition to Plaintiffs’ Motion for Alternative
Service and Defendant’s cross-Motion to Dismiss.
Court will first analyze Plaintiffs’ Motion for
Alternative Service before addressing Defendant’s
Motion to Dismiss.
Plaintiffs’ Motion for Alternative Service
Motion for Alternative Service requests that the Court (1)
permit Plaintiffs to serve the complaint, summons, and
associated papers on Defendant via email and by serving
Defendant’s U.S. counsel and (2) extend
Plaintiffs’ deadline to properly effectuate service.
Mot. for Alternative Service at 2.
a federal court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of summons
must be satisfied.” Omni Capital Int’l v.
Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Under
Federal Rule of Civil Procedure 4(h), a defendant corporation
can be served “at a place not within any judicial
district of the United States, in any manner prescribed by
Rule 4(f) for serving an individual, except personal delivery
under (f)(2)(C)(i).” Fed.R.Civ.P. 4 (h)(2). The
relevant subsection of Federal Rule of Civil Procedure 4(f)
provides that a foreign defendant may be served outside of
the United States “by other means not prohibited by
international agreement, as the court orders.”
under Rule 4(f)(3) must be (1) directed by the court; and (2)
not prohibited by international agreement.” Rio
Props., Inc. v. Rio Int’l Interlink, 284 F.3d
1007, 1014 (9th Cir. 2002). To comport with traditional
notions of due process, notice must be “reasonably
calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford
them an opportunity to present their objections.”
Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950); Rio Props., Inc., 284 F.3d at
1016. “[S]ervice under Rule 4(f)(3) is as favored as
service available under Rule 4(f)(1) or Rule 4(f)(2)”
and is “neither a ‘last resort’ or