494 F. App'x 736
9th Cir.2012Background
- Rubicon Global Ventures, Inc. and Z Motors, Inc. appeal district court rulings setting aside defaults in Rubicon I, Rubicon II, and Rubicon III for insufficiency of service and the district court’s dismissal of Ying Zuo and ZUSA for lack of personal jurisdiction.
- The Ninth Circuit reviews Rule 60(b)(4) voidness de novo and considers service of process for notice reasonably calculated to apprise interested parties.
- ZS Group (Zongshen Industrial Group/ZSIGCL) was served through Zongshen, Inc., its agent, with substantial common ownership and prior representations supporting agency for service.
- ZSIE (Zongshen Group Import/Export Corp.) is the ultimate parent of ZSIE; Zongshen, Inc. was listed as agent for service of process for NTMSVSA purposes and shares officers with related Zongshen entities.
- Zongshen Zuo was not served properly via substitute service on his Florida-spouse; there is no evidence of notice to Zongshen Zuo in China or otherwise.
- The district court’s personal-jurisdiction rulings were reviewed de novo; Ying Zuo had prima facie jurisdictional facts, while ZUSA lacked sufficient facts for jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service on ZS Group via Zongshen, Inc. sufficient? | ZS Group had substantial ownership links to Zongshen, Inc. and agency was supported by representations to the EPA. | Service on Zongshen, Inc. may not constitute valid service on ZS Group absent explicit appointment. | Yes; service was sufficient. |
| Was service on ZSIE and ZIGCL via Zongshen, Inc. sufficient under Oregon law? | ZSIE and ZIGCL were closely related to ZS Group; Schlunk supports agency for service under related doctrine. | There is no formal appointment; service on the domestic entity may be inadequate. | Yes; notice was sufficient. |
| Was service on Zongshen Zuo via a Florida spouse valid? | There were sufficient facts to argue agency or notice through the Zongshen/Zuo family connection. | Florida substitute service on a spouse is not a proper usual residence/service under ORCP 7(D). | No; service insufficient. |
| Did Ying Zuo have sufficient minimum contacts to establish personal jurisdiction? | Alleged meetings and representations by Ying Zuo as a Zongshen officer justify jurisdiction. | Initial rulings showed lack of involvement by Ying Zuo; no substantial ties to the forum. | Yes as to Ying Zuo; district court erred in dismissing for lack of jurisdiction. |
| Was ZUSA properly dismissed for lack of personal jurisdiction? | ZUSA is a Zongshen entity and could be subject to jurisdiction by association. | Plaintiffs failed to allege sufficient facts to exercise jurisdiction over ZUSA. | Yes, properly dismissed; lack of sufficient facts for jurisdiction. |
Key Cases Cited
- United States v. Berke, 170 F.3d 882 (9th Cir. 1999) (voidness under Rule 60(b)(4) requires lack of subject matter or due process issues)
- S.E.C. v. Ross, 504 F.3d 1130 (9th Cir. 2007) (notice under due process requires reasonably calculated notice)
- Chan v. Society Expeditions, Inc., 39 F.3d 1398 (9th Cir. 1994) (foreign service options under 4(h)(1)(A)/(B))
- Schlunk, 486 U.S. 694 (1988) (agency for service of process through subsidiary; close relation can suffice)
- Baker v. Foy, 797 P.2d 349 (Or. 1990) (reasonableness standard for service under Oregon law)
- Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) (prima facie showing required to withstand 12(b)(2) motion)
- Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008) (conflicts resolved in plaintiff's favor at Rule 12(b)(2) stage)
- Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) (resolutions of affidavits and conflicts in jurisdictional analysis)
- Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218 (9th Cir. 2011) (de novo review of personal jurisdiction when no evidentiary hearing)