Rubicon Global Ventures, Inc. v. Chongquing Zongshen Group Import/Export Corp.Rubicon Global Ventures, Inc. v. Chongquing Zongshen Group Import/Export Corp.
ORDER AND AMENDED MEMORANDUM
This mаtter is before the Court on a “motion to vacate and/or stay the mandate to correct error regarding personal jurisdiction over Ying Zuo,” filed on behalf of defendant-appellee Ying Zuo. We construe this motion as a motion to recall the mandate issued on April 18, 2013. This Court may exercise its authority to recall its mandate for “good cause” or to “prevent injustice[;]” however, the power to do so should be exercised only in еxceptional circumstances. Zipfel v. Halliburton Co.,
Appellants Rubicon Global Ventures, Inc. and Z Motors, Inc. appeal, inter alia: (a) the district court’s setting aside of the default judgments in District Court Docket Nos. 3:05-cv-01809 (“Rubicon /”), 3:09-cv-00818 (“Rubicon II”), and 3:09-cv-01397 (“Rubicon III ”) on the basis of insufficiency of service; and (b) the district court’s dismissal of Ying Zuo and Zongshen USA Holdings, Inc. for lack of personal jurisdiсtion. For the reasons below, we find that service was sufficient on all ap-pellees other than Zongshen Zuo. As to the dismissals for lack of personal jurisdiction, we find no error in the district court’s rulings. We therefore affirm in part, revеrse in part, and remand for further proceedings consistent with this amended memorandum disposition.
The district court set aside the defaults and default judgments on the grounds that such judgments were void for insufficiency of service of procеss. The Ninth Circuit has found that “[a] final judgment is ‘void’ for purposes of Rule 60(b)(4) only if the court that considered it lacked jurisdiction, either as to the subject matter of the dispute or over the parties to be bound, or acted in a manner inсonsistent with due process of law.” United States v. Berke,
“Service of process has its own due process component, and must be ‘notice reasonably calculated ... to apprise intеrested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” S.E.C. v. Ross,
We agree with the district court that it was not necessary in this case for the appellants to comply with the Convention on Service Abroad of Judicial and Extrajudiсial Documents in Civil Commercial Matters, November 15, 1965 (Hague Service Convention), [1969] 20 U.S.T. 361, T.I.A.S. No. 6638. Instead, we must apply Oregon law. In determining whether service is adequate under Oregon law, the question is: “[w]as the method of service selectеd ... ‘reasonably calculated to apprise the defendant of the existence and pendency of the action?’ ” Baker v. Foy,
We first address service on Chongquing Zongshen Group (“ZS Group”), which we understand to be one and the same as the entities commonly referred to in this case as Zongshen Industrial Group, Co. Ltd. (“ZIGCL”) and Zongshen Industrial Group (“ZIG”). ZS Group was served through Zongshen, Inc., as agent of ZS Group. The record reflects that Zongshen, Inc. was 95 percent owned by ZS Group, with the remaining 5 percent ownership held by Dexiu Yuan, who has positions in both companies. We conclude that ZS Group had sufficient, reasonable notice via service on Zongshen, Inc., given the following factors: (a) the substantial common ownеrship links between the two entities; (b) Mr. Xie Yenong’s 2004 letter to the EPA representing Zongshen, Inc. to be the agent for ZS Group; and (c) the decision in Volkswagenwerk Aktiengesellschaft v. Schlunk,
ZIGCL is the ultimate parent company of Chongquing Zongshen Group Import/Export Corp. (“ZSIE”). As was the case with the domestic subsidiary in Schlunk, Zongshen, Inc. was listed as the agent for service of process for ZSIE for the purpose of receiving notices under the National Traffic and Motor Vehicle Safety Act (“NTMVSA”). Not only was Zongshen, Inc. placed in the foreground as the American face of all Chinese Zongshen entities, it was registered as ZSIE’s agеnt for suits arising under the NTMVSA and shared officers with the other Zongshen entities. Based on Schlunk, we find that ZSIE and Zongshen, Inc. were so closely related that the latter was ZSIE’s agent for service as a matter of law, “notwithstanding [ZSIE’s] failure or refusal to appoint [Zongshen, Inc.] formally as an agent.” See Schlunk,
As to Zongshen Zuо, the only service attempted was substitute service on his spouse, Dexiu Yuan, at her usual place of abode in Florida. We agree with the district court’s assessment that Zongshen Zuo was not served pursuant to ORCP 7(D)(2)(b), as the Florida residеnce was not his usual place of residence or abode. Likewise, such service did not provide reasonable notice of suit as there is no evidence that the summons and complaint were mailed to Zongshen Zuo in China or that he otherwise received notice of the pendency of the actions against him. Thus, we affirm the district court’s ruling as to insufficiency of service of process on Zongshen Zuo.
The only remaining issue which this Court must address is thе district court’s dismissal of Ying Zuo and Zongshen USA Holdings, Inc. (“ZUSA”) for lack of personal jurisdiction. We review a dismissal for lack of personal jurisdiction de novo. Mavrix Photo, Inc. v. Brand Techs., Inc.,
The appellants sought to allege specific personal jurisdiction ovеr Ying Zuo, which is personal jurisdiction arising out of a defendant’s contacts with the forum. . See Wells Fargo & Co. v. Wells Fargo Exp. Co.,
This court will not exercise general рersonal jurisdiction over defendant Ying Zuo. During the relevant time frame, defendant Ying Zuo was a college student and was not involved in the day-today activities of the corporate defendants and had no involvement with the alleged fraud that occurred. Accordingly, this court lacks specific personal jurisdiction over her.
The district court ordered further briefing on matters unresolved by its June 7 order. The appellees also filed motions for dismissal basеd on the district court’s June 7 rulings. On August 25, 2010, the district court dismissed Ying Zuo for lack of personal jurisdiction, ruling that there had “been no allegations of any conduct by Ying Zuo that would subject her to this court’s jurisdiction or subject her to any liability in these cases, through RICO or otherwise.” We now affirm that ruling, as follows.
A careful reading of the operative Rubicon II complaint makes it clear that the appellants had indeed failed to meet their burden, at that time, of establishing personal jurisdiction over Ying Zuo. That complaint allegеd:
The individual defendants include (1) Zuo Zongshen, who is the founder of the Zongshen corporate defendants, (2) Dex-iu Yuan, who on information and belief resides in Florida, and is the incorpo-rator, president and director of Zongshen Inc. [siс] and [ZUSA], and (3) Ying Zuo, who on information and belief resides in Florida and is vice president, secretary, treasurer and director of [ZUSA]. Defendant Zuo met with plaintiffs and made certain false representations to them in order to inducе them to market Zongshen products as discussed below. Both defendants Dexiu and Ying conspired with the other defendants to sell illegal motorbikes in the United States through Zongshen, Inc., plaintiffs and other persons like plaintiffs.
Clearly, when reаd in the proper context, this paragraph is referring to Zuo Zongshen by his first name, “Zuo,” and attributes to him the allegation that he “met with plaintiffs and made certain false representations to them in order to induce them to markеt Zongshen products[.]” This clarification contradicts the Court’s earlier interpretation of these facts.
The basis for this Court’s initial misreading of the Rubicon II complaint was twofold. First, there was a lack of appreciation for the reference to Zuo Zongshen, rather than Ying Zuo, as “Zuo.” Second, there was a conflation of non-pertinent allegations made in the later Rubicon TV complaint with those properly before the Court in the amended Rubicon II complaint. The Rubicon TV complaint made seemingly similar allеgations to those at issue in the Rubicon II complaint; however, the Rubicon TV allegations were much more fact-specific concerning Ying Zuo’s relevant activities. The Rubicon TV com
[S]he was and is an officer and on the board of directors of a Zongshen company, [ZPM] cоmmencing in 2004; ... [and] she met with plaintiffs’ representatives before they created Z Motors, Inc., and made representations to plaintiffs causing the Oregon investors to form Z Motors, Inc., and take actions in Oregon in furtherance оf the joint venture between plaintiffs and defendants.
The combination of the similar “Zuo” names and the more detailed allegations contained in the Rubicon TV complaint allowed this Court to reach an inaccurate legal сonclusion regarding whether the operative Rubicon II complaint sufficiently alleged personal jurisdiction over Ying Zuo.
In light of these clarified facts, the Court hereby amends its ruling to find that the appellants failed to make a primа facie showing of personal jurisdiction over Ying Zuo in Rubicon II. See Fields,
Lastly, the appellants attempted to allege personal jurisdiction over ZUSA by virtue of the fаct that ZUSA is a Zongshen entity, and all other Zongshen entities are subject to personal jurisdiction. However, this cannot suffice to make out a prima facie case for personal jurisdiction over ZUSA. Because the appellants failed to allege sufficient facts for the court to assert personal jurisdiction over ZUSA, there was no error in dismissing ZUSA.
Each party should bear their own costs.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Notes
xhiS disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.