Lexmark International, Inc. v. Ink Technologies Printer Supplies, LLC
295 F.R.D. 259
S.D. Ohio2013Background
- Lexmark seeks permission to serve Zhuhai Aeon Image Co. and Eco Service Sp. z.o.o. by email under Rule 4(f)(3).
- Foreign defendants have not appeared; no opposition filed.
- Second Amended Complaint added Chinese and Polish defendants; prior orders addressed service methods.
- Rule 4(f)(3) allows court-ordered, non-prohibited-by-international-agreement service methods.
- Court considers whether service by email is reasonably calculated to reach defendants and whether discretion to order alternative service is warranted.
- Courts have held 4(f)(3) is not a last resort and Hague Convention does not bar email service when appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 4(f)(3) authorizes email service on the two defendants. | 4(f)(3) authorizes non-traditional methods. | Not necessary if other methods suffice or if prohibited by international agreement. | Yes; court may authorize email service. |
| Whether email service comports due process. | Email addresses reachable; communication occurred. | Service must be reasonably calculated to reach and notify. | Yes; due process satisfied under circumstances. |
| Whether the Court should exercise its discretion to order alternative service. | Delay and evasion justify non-traditional service. | Courts should require foreign-law efforts first. | Yes; discretionary, warranted by case posture. |
| Whether service by email complies with Hague Convention considerations. | Hague permits flexible methods; emails not prohibited. | Not prohibited; email service permissible. |
Key Cases Cited
- Popular Enters., LLC v. Webcom Media Grp., Inc., Karen ( ) (supports 4(f)(3) flexibility (not hierarchical))
- Studio A Entm’t, Inc. v. Active Distributors, Inc., 2008 WL 162785 (N.D. Ohio 2008) (4(f)(3) is not last resort; one means among several)
- Flava Works, Inc. v. Does 1-26, 2013 WL 1751468 (N.D. Ill. 2013) (4(f)(3) used for international service)
- Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (4(f)(3) is not extraordinary relief)
- Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nig., 265 F.R.D. 106 (S.D.N.Y. 2010) (discretionary standard for 4(f)(3))
- In re GLG Life Tech Corp. Sec. Litig., 287 F.R.D. 262 (S.D.N.Y. 2012) (considers prerequisites before 4(f)(3) relief)
- Williams v. Adver. Sex LLC, 231 F.R.D. 483 (N.D. W. Va. 2005) (foreign-service considerations)
- Facebook, Inc. v. Banana Ads, LLC, 2012 WL 1038752 (N.D. Cal. 2012) (email service considered permissible in some contexts)