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If a defendant is located in a country that is a signatory to the Hague Service Convention, service of process upon the defendant must be pursuant to the Convention.[1] However, there are three common situations where the convention is not applicable:

  1. When an address for service cannot be found after the exercise of due diligence;
  2. When the documents to be served do not have to be transmitted overseas; and
  3. When a waiver of service of process is obtained.[2]

In CSPC Dophen Corporation v. Zhixiang Hu,[3] the district court examined aspects of the latter two situations.

Although this case is factually complex,[4] herein we focus on the issue of waiver and alternative service. At the end, we will also discuss why the use of the word “alternative” in this case is a bit of a misnomer.

Hu Seeks a Waiver of Service

In this action, Dr. Zhixiang Hu initially sought a waiver of service of process from CSPC’s US counsel. Local counsel stated that they were not authorized to accept service of process. This is a very common defense strategy when defendants are located abroad.

For attorneys who are entrenched in only domestic litigation, such a defense strategy might seem strange. In federal court defendants are — absent a good cause — required to waive service of process.[5]

However, this rule does not apply to international service of process.[6]

Hu Seeks Alternative Service

Having failed to secure waivers, Dr. Hu needed to serve several “counter-defendants” who resided in China.

According to the second amended counterclaim, Yingui Li is “a director of board of CSPC-Dophen and officer of CSPC Limited.” Jinxu Wang is “the Chief Executive Officer of CSPC-Dophen.” Jumin Sun “is the Chief Financial Officer of CSPC Limited[.]”And Dongchen Cai “is the Chairman of CSPC-Dophen, CSPC Holding Limited… and CSPC Limited.” The motion seeks service “on counter defendants’ US Attorney” and is brought pursuant to Rule 4(f) of the Federal Rules of Civil Procedure.[7]

For undisclosed reasons, Dr. Hu did not want to serve the Chinese defendants pursuant to the Hague Service Convention. Instead, Dr. Hu sought to effect service “on counter defendants’ US attorney, counsel for the plaintiff CSPC Dophen.”

Hu’s Request for Alternative Service is Granted

Rule 4(f) of the Federal Rules of Civil Procedure allows a plaintiff to serve an individual located outside of the United States “by other means not prohibited by international agreement.” Importantly, Rule 4(f) “imposes no limitation on the court’s authority to authorize alternative means of service.”

In this regard, alternative service pursuant to Rule 4(f)(3) “is neither a `last resort’ nor `extraordinary relief,'” but “is merely one means among several which enables service of process on an international defendant.”

That said, the district court then stated:

Regardless of whether counsel is authorized to accept service on behalf of the counter-defendants, in this action counsel for plaintiff has also repeatedly appeared on behalf of the counter-defendants. In this regard, plaintiff’s counsel has also served as the foreign counter-defendants’ United States-based counsel. “Service upon a foreign defendant’s United States-based counsel is a common form of service ordered under Rule 4(f)(3).” Accordingly, for the reasons stated above, Dr. Hu’s motion for alternative service of process will be granted.[8]

What the Court Failed to Acknowledge Regarding Service

What the court did not acknowledge in this case was that by “short-circuiting” service from abroad to domestic, service no longer needed to be transmitted overseas.

For this reason, the Hague Service Convention was no longer applicable and hence the court was not ordering alternative service at all, but rather ordering a specific form of domestic service.

It’s also important to note that while this type of service will satisfy US rules, it will more than likely not be enforceable in a foreign country.

How LLS Can Help

At LLS, we have years of experience navigating the intricacies of foreign law. We can assist you not only with the translation of documents to be served, but also with service itself.

Contact LLS today to learn more about how we can help you serve process China as well as 90 other countries.

Call 1-800-755-5775  or simply fill out our online inquiry form.

 

Notes
[1] Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).
[2] Id. at Preamble and Article I.
[3] No. 2:17-cv-1895 MCE DB PS (ED CA 2020).
[4] The Plaintiff “asserts causes of action for breach of contract, breach of the duty of loyalty, violation of the Defend Trade Secrets Act, 18 U.S.C. § 1832(a)(1), violation of the Lanham Act, 15 U.S.C. § 1125(a), conversion, violation of the California Comprehensive Computer Data Access and Fraud Act, California Penal Code § 502, unfair competition, and defamation.”
[5] FRCP (d)(2).
[6] Id.
[7] Citations omitted.
[8] Id.

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