2:23-cv-00507
E.D. Tex.Jan 4, 2024Background
- MyChoice, LLC (Plaintiff) filed suit against Taiv, Inc., a Canadian corporation headquartered in Manitoba, for alleged patent infringement.
- Plaintiff sought court approval to serve Taiv, Inc. via email, Instagram, LinkedIn, and on Taiv’s U.S. subsidiary, Taiv USA, Inc.
- Plaintiff did not attempt service via the Hague Convention, though Canada is a signatory and its procedures are available.
- Plaintiff argued that Taiv was intentionally evading service and that Hague Convention service would cause excessive delay.
- The motion addressed whether alternative service was appropriate under Federal Rule of Civil Procedure 4(f)(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 4(f)(3) alternative service may be used | MyChoice: Alternative service is allowed without first attempting Hague Convention service | (Not stated) | Denied; more than mere inconvenience is required; Hague procedures not shown infeasible |
| Whether delay and avoidance justify alternative service | MyChoice: Delay of 3-6 months and alleged avoidance justify alternative means | (Not stated) | Court found mere delay and alleged avoidance are insufficient for alternative service |
| Sufficient effort at conventional service demonstrated | MyChoice: Contact with Canadian counsel and firm shows defendant is aware of lawsuit | (Not stated) | Insufficient effort; mere contact with firms/attorneys does not mean defendant was notified |
| Service on U.S. subsidiary as sufficient under due process | MyChoice: Service on Taiv USA, Inc. would notify Taiv, Inc. | (Not stated) | Not enough evidence that subsidiary is alter ego or authorized agent; due process not met |
Key Cases Cited
- Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (alternative service not a last resort; courts have discretion under Rule 4(f)(3))
- Nuance Communications, Inc. v. Abbyy Software House, 626 F.3d 1222 (Fed. Cir. 2010) (Rule 4(f)(3) is equal to other means of service, but not to be used when only more convenient)
- Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process requires notice reasonably calculated to apprise party of action)