Updateme Inc. v. Axel Springer SE, 3:17-cv-05054

Updateme Inc. sued four related defendants for trademark and state-law claims, including German company upday GmbH & Co. KG (Upday). Upday has its principal place of business in Berlin and no U.S. presence according to its CFO/COO.
Plaintiff contends the defendants are alter egos, share counsel, file a single tax return, and operate as a single enterprise.
Plaintiff served two defendants domestically; ASDV was served, and Axel Springer entities appeared. Upday has not been served via the Hague Convention.
Upday’s U.S. counsel (Freshfields) communicated with plaintiff’s counsel but declined to accept service for Upday; Upday made a special appearance and opposed alternative service.
Plaintiff moved under Federal Rule of Civil Procedure 4(f)(3) to serve Upday by email through its U.S.-based counsel; the court held a hearing and granted the motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 4(f)(3) can authorize service on a foreign defendant via its U.S.-based counsel	Alternative service via U.S. counsel is permissible and reasonably calculated to give notice	Service must proceed through the Hague Convention and Germany's Central Authority; alternative service is improper	Court granted Rule 4(f)(3) service on Upday's U.S. counsel as reasonably calculated to give notice
Whether authorizing service would violate the Hague Convention (Germany’s Article 10 objection)	Hague does not bar all alternative means; service on U.S. counsel is not prohibited and can be consistent with the Convention	Germany’s objection to certain methods means service must go through the Central Authority	Court found Germany’s Article 10 objection did not bar Rule 4(f)(3) service here
Whether service on U.S. counsel satisfies due process	Service on counsel provides notice and opportunity to respond given communications and shared counsel/relations among entities	Upday argued foreign enforcement risk and asserted lack of authorization to accept service	Court found service comported with due process given communications and case circumstances
Whether special appearance waived service objections	Plaintiff implied waiver argument	Upday argued special appearance did not waive service defenses	Court did not decide waiver; granted alternative service and declined to resolve waiver issue

Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (Rule 4(f)(3) is an independent, discretionary means of serving foreign defendants and must comport with due process)
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (U.S. 1988) (Hague Convention applies only to transmittals abroad required as part of service; other domestic methods may be permissible)
In re South African Apartheid Litig., 643 F. Supp. 2d 423 (S.D.N.Y. 2009) (Germany’s Article 10 objection does not categorically bar alternative service methods that ensure notice)