291 F.R.D. 172
S.D. Ohio2013Background
- Lexmark renewed a Rule 4(f)(3) motion seeking alternative service (email and/or U.S. agent) on four foreign corporate defendants: Eco Service China Ltd., Shanghai Orink InfoTeeh Int’l Co., Zhuhai Rieheng (Richeng) Development Co., and Interseroh Product Cycle GmbH.
- The defendants are located in China (three) and Germany (one) and have not appeared; no opposition was filed to the renewed motion.
- The court previously granted alternative service in part but denied email service for these four defendants because email was not shown to be reasonably calculated to reach them.
- Lexmark submitted evidence that the defendants publish contact email addresses on their websites, that those addresses are valid, and that communications occurred at those addresses.
- Lexmark also showed that ECOI U.S. Supplies, Inc. is an affiliated U.S. entity/domestic agent for Zhuhai Rieheng (shared principals, shared website, California agent for service).
- The court found further delay via formal Hague Convention transmission would prejudice Lexmark and that defendants have a history of evading service, supporting alternative methods under Rule 4(f)(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 4(f)(3) alternative service by email is permitted | Email service is reasonably calculated to notify foreign defendants and is not prohibited by the Hague Convention | (No appearance; court previously skeptical that email would reach these defendants) | Court authorized email service where Lexmark showed valid emails and prior communications |
| Whether service via a U.S. affiliate/agent satisfies due process for a Chinese defendant | Service on ECOI U.S. Supplies (U.S. affiliate/agent) will notify Zhuhai Rieheng because of shared control and agent appointment | (No appearance) | Court allowed service on ECOI as domestic agent for Zhuhai Rieheng |
| Whether the Hague Convention bars email or other non‑conventional service | Plaintiff: Hague does not prohibit alternative means such as email; courts have approved email service | Defendants: (no direct argument filed) | Court found email service not prohibited by the Hague Convention and permissible under Rule 4(f)(3) |
| Whether the facts warrant exercising discretion to permit alternative service | Plaintiff: prolonged case, difficulty locating defendants, potential months’ delay via Hague, and risk of evasion justify alternative service | Defendants: (no appearance) | Court exercised discretion to permit alternative service given delays and evasion risk |
Key Cases Cited
- Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (Rule 4(f)(3) is an available means of service, not a last resort)
- Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) (service on U.S. subsidiaries/agents can satisfy international service requirements)
- Popular Enters., LLC v. Webcom Media Grp., Inc., 225 F.R.D. 560 (E.D. Tenn. 2004) (requirements for Rule 4(f)(3) relief: court-directed and not prohibited by international agreement)
- Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nig., 265 F.R.D. 106 (S.D.N.Y. 2010) (decision to allow alternative service under Rule 4(f)(3) is committed to the court’s discretion)