Sulzer Mixpac AG v. Medenstar Industries Co.
2015 U.S. Dist. LEXIS 159762
| S.D.N.Y. | 2015Background
- Sulzer Mixpac AG (Swiss) sued Medenstar Industries Ltd. (China) alleging trademark and patent-related claims in March 2015 and sought to serve Medenstar overseas.
- Plaintiff attempted service through the Hague Convention (Chinese Central Authority) beginning March 30, 2015, but after many inquiries was told service was still "pending in the court system."
- After nearly eight months without effective service, Sulzer moved for alternative service under Fed. R. Civ. P. 4(f)(3): email to export@medenstar.com and postal mail to the address listed on Medenstar’s website.
- China has filed an Article 10 objection under the Hague Convention to service "by postal channels," which the Second Circuit has treated as covering postal service.
- The Court evaluated due process concerns, plaintiff’s attempts to effectuate service via the Convention, and whether court-ordered alternative service was necessary and reasonably calculated to give notice.
- Court granted service by the listed email address but denied service by international postal mail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court should authorize alternative service under Fed. R. Civ. P. 4(f)(3) | 4(f)(3) appropriate after unsuccessful Hague attempts; email and mail will notify Medenstar | Implicitly that Convention process should govern and alternative methods may be improper | Court: 4(f)(3) may be used; granted limited alternative service (email) after finding attempts reasonable and intervention necessary |
| Whether service by postal mail to China is allowed | Postal mail listed on website would reach defendant | China objected to Article 10 methods; postal mail arguably prohibited by Convention | Denied: China’s Article 10 objection bars postal service per Schlunk/Ackermann reasoning |
| Whether service by email is permissible despite China’s Article 10 objection | Email to export@medenstar.com is listed on company website and likely to reach defendant | Some authorities argue Article 10 objections should bar other alternative means (email) too | Granted: email is reasonably calculated to give notice, is trackable, and not covered by China’s Article 10 objection |
| Whether plaintiff made reasonable attempts via the Hague and needs court intervention | Plaintiff promptly used Convention, repeatedly inquired of Chinese Central Authority, and waited months | (No persuasive showing that plaintiff failed to attempt Convention service) | Court found plaintiff reasonably attempted Convention service and that court intervention was necessary |
Key Cases Cited
- Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (Sup. Ct.) (Hague Convention compliance is mandatory when it applies)
- Ackermann v. Levine, 788 F.2d 830 (2d Cir.) (interpreting Article 10(a) “send” to encompass service)
- Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106 (S.D.N.Y.) (district court discretion on Rule 4(f)(3) and threshold requirements)
- NYKCool A.B. v. Pacific Int’l Servs., Inc., 66 F. Supp. 3d 385 (S.D.N.Y.) (Rule 4(f)(3) requires method reasonably calculated to give notice; courts examine likelihood defendant will receive email)
- Gurung v. Malhotra, 279 F.R.D. 215 (S.D.N.Y.) (authorizing email service to foreign defendant despite Hague objections limited to Article 10 methods)
- In re S. African Apartheid Litig., 643 F. Supp. 2d 423 (S.D.N.Y.) (permitting alternative service forms where Convention objections did not explicitly bar them)