MEMORANDUM OPINION AND ORDER
Plaintiff Jay Marshall Strabala brought this action against Defendants Qiao Zhang and Zhou Shimiao (referred to collectively as “Defendants” and individually as “Zhang” and “Zhou”)
Strabala is an American architect whose practice focuses on the design of performing arts complexes, convention centers, and highrise office buildings. See R. 33-1 (Strabala Decl., ¶ 3); R. 33-9 at 10; www.flickr.com/ people/architectuml-design/?ytcheck=l (stating that Strabala is an expert in super-tall building design, sustainable design of commercial buildings, and the design of performing arts venues). In promotional materials for his architectural firm, Strabala is described as a leader of “the next generation of Super-tall Building Designers,” who designed the two tallest skyscrapers in the world—the Dubai Burj Khalifa in the United Arab Emirates (currently the tallest building in the world) and the Shanghai Tower in China (currently the second tallest building in the world, the tallest building in China, and the tallest building in the world with “two skins”
Strabala was born in Seattle and grew up in San Francisco. He went to undergraduate school at UCLA and then received a Master of Architecture at Harvard. His first job after graduating from Harvard was with the architectural firm of Skidmore Owings & Merrill (“SOM”) in Chicago. He lived in a rented apartment for roughly his first ten years, and then, in or around 1999, he and his wife purchased a condominium in a well-known high-rise building in Chicago designed by the famed architect Ludwig Mies van der Rohe (hereinafter “the Lake Shore Drive Condo”). Strabala worked at SOM until March 2006, at which time he accepted a position with the Houston office of another architectural design firm, M. Arthur Gensler Jr. & Associates, Inc. (“Gensler”). From 2006 until 2008, Strabala made frequent trips to Shanghai as part of Gensler’s team preparing to offer a design bid for the Shanghai Tower. In 2008, it was announced that Gensler had won the design competition, and thereafter Strabala began working almost exclusively from Shanghai while the Tower was being constructed.
In March 2010, before the Tower was completed, Strabala had a falling out with Gen-sler and his employment with that firm terminated. A short time later, Strabala formed his own architectural firm called Strabala & Woo Architects, LLC.
From 2010 to 2014, 2DEFINE was commissioned to design four super tall towers in China, with Strabala as the lead designer. Strabala remained in Shanghai during this time. While working on those projects from China, Strabala also was being sued in the United States by his two former employers. In a lawsuit filed in the Northern District of Illinois in June 2011, Gensler alleged that after Strabala founded his own firm he publicly misrepresented his role in several projects, including the Shanghai Tower, while minimizing or entirely omitting the nature of Gensler’s contribution. The day after Gensler filed its lawsuit, SOM made similar allega
The complaint in this case alleges that while all of the above was taking place, Zhang and Zhou were secretly diverting money from 2DEFINE. Strabala alleges that, in approximately March 2014, he discovered the existence of two separate Chinese partnerships with similar-sounding names to 2DEFINE’s Chinese name (the DeFan entity). Strabala claims Zhang and Zhou secretly formed those entities to facilitate their embezzlement. Zhang and Zhou, of course, deny any wrongdoing. Whatever the reason for the partnership’s break-up, litigation in China between the parties followed Strabala’s alleged discovery. The complaint before this Court asserts that, while the Chinese litigation was on-going,
Strabala filed this complaint on February 9, 2015 and attempted to effect service on Zhang and Zhou through the Chinese Ministry of Justice pursuant to the procedures set forth in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Convention”). On November 10, 2015, Strabala informed the Court that he was having trouble serving Zhang and Zhou in China, and requested that the Court enter an order granting him permission to serve by alternative means. On November 17, 2015, the Court entered an order permitting alternative service by e-mail and Federal Express. On January 12, 2016, believing that the e-mail service had been successful and with the time for an answer or response to the complaint having expired, Strabala filed a motion for default judgment. The Court granted Strabala’s motion on January 14, 2016, and an Order of Default Judgment was entered on the docket on January 19, 2016. See R. 17. Approximately four weeks later,
MOTION TO VACATE DEFAULT JUDGMENT
Federal Rule of Civil Procedure 55(c) provides that the district court may set aside an entry of default “[f]or good cause shown,” and may set aside a default judgment “in accordance with Rule 60(b).” Fed. R. Civ. P. 55(c). Regardless of which standard applies,
“A party seeking to vacate an entry of default prior to the entry of final judgment must show: (1) good cause for the default; (2) quick action to correct it; and (3) a meritorious defense to the complaint.” Cracco v. Vibran Express, Inc.,
Before the break-up of 2DEFINE, Defendants were involved in Strabala’s defense of the SOM and Gensler litigation. Therefore, the Court takes Defendants’ assertion that they have no “familiarity with the U.S. legal system” with a grain of salt. While they may not be familiar with the specifics of American civil procedure, they are business professionals with past experience woi’king for American companies (in Zhang’s case, living and working in the United States). Even without this business background, a reasonably diligent person would have made inquiries or sought expert advice as to how to respond, not simply ignore something which they both claim they did not understand. The Court also is skeptical of Defendants’ assertion that they did not realize Strabala was intending to sue them in the United States. Both Zhang and Zhou have represented to the Court that they are fluent in English, and the case caption on the complaint clearly informed them that the lawsuit was in the United States. Finally, the Court does not accept as “good cause” Defendants’ explanation that they did not respond to the complaint because they questioned whether service by e-mail was legally sufficient. “[Sjervice of process laws are designed to ensure defendants receive notice in accordance with concepts of due process.” United States v. Jiles,
Looking at the record as a whole, the Court suspects that Defendants might have been trying to evade service.
First and foremost, the delay occasioned by Defendants’ default did not prejudice Strabala by impinging upon his ability to pursue the litigation. “[D]elay that imposes slight injury does not call for multi-mil-lion-dollar awards.” Id. at 869; see, e.g., Fed. Trade Comm’n v. Construct Data Publishers,
Defendants also have shown a meritorious defense as to Count II of the complaint, as discussed later in this opinion, and have raised non-frivolous arguments regarding the Court’s assertion of personal jurisdiction over them as to Count I. While the Court ultimately rejects Defendants’ arguments as to Count I (as discussed later in this opinion), that rejection only reaches the issue of whether Strabala has made out a prima facie showing of personal jurisdiction. The Court therefore concludes that Defendants have shown a possible meritorious defense as to both counts in the complaint. Since Defendants entered an appearance, they have participated in the litigation by filing a motion to dismiss on jurisdictional grounds, followed by jurisdictional discovery and extensive briefing on the jurisdictional issues. Thus, Defendants have now shown that they are committed to actively defending themselves. Given
MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction. Before addressing the parties’ substantive arguments on that motion, however, the Court must address Strabala’s Motion to Strike.
A. Motion To Strike
1. Background
The documents at issue in Strabala’s Motion to Strike are Exhibits F and G
As a preliminary matter, the Court notes that, for reasons that will be made clear in the next section, Exhibits F and G, even if considered by the Court, would not change the Court’s ruling on whether subject matter jurisdiction exists over this lawsuit. Indeed, Defendants themselves refer to these documents as “a relatively minor point of corroborative evidence.” R. 46 at 6 n,4. With this admission and the Court’s analysis and conclusions in the next section regarding subject matter jurisdiction, the Court could simply deny the Motion to Strike without prejudice as being moot and omit any discussion of the merits of that motion. Nevertheless, the Court has determined that the Motion to Strike should be addressed on the merits for two reasons: first, the overlap and potential impact of the issues raised in the parties’ briefing on the Motion to Strike with the merits issues likely to be in dispute in the case going forward; and, second, the Court’s concerns about potential misconduct by the parties to this litigation.
2. Lack of Foundation
Zhang and Zhou, as the proponents of Exhibits F and G, bear the burden of establishing a foundation for their admission. See United States v. Cejas,
First, the Court rejects Defendants’ argument that the e-mails do not need to be authenticated because they do not have to be admissible in court to be considered on a motion to dismiss for lack of subject matter jurisdiction. The cases cited by Defendants involve preliminary, non-final rulings, such as a jurisdictional ruling at the pleadings stage concerning the amount in controversy, see Boncher-Wales Mktg. Grp., Inc. v. GXi Int'l, LLC,
Second, the Court also cannot accept Defendants’ contention that Exhibit F has been authenticated by Strabala himself when, at the direction of this Court after a hearing was held on his Motion to Strike, he confirmed through his counsel that the letter to his wife attached to his e-mail was in fact sent by him. Strabala specifically stated that, although he sent his wife a letter similar to the one included in Exhibit F, he believes Defendants’ copy of that letter may have been doctored. Accordingly, Strabala did not authenticate the version of the letter on which Defendants rely.
Third, the Court rejects Defendants’ contention that Exhibits F and G are self-authenticating under Federal Rule of Evidence 902(7). Rule 902(7) provides that “[a]n inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control,” need not be supported by extrinsic evidence of authenticity. According to Defendants, (1) Strabala’s electronic signature on his e-mail, (2) the 2DEFINE letterhead on Strabala’s letter to his wife, and (3) the typed name “Ding Qing” on her e-mail, together with her contact information at the “Shanghai Institute of American Studies,” constitute “trade inscriptions” within the meaning of Rule 902(7). Defendants, however, cite no case law that would support finding that either an electronic signature or a typed name and address in an e-mail constitute trade inscriptions under Rule 902(7). Moreover, their argument is inconsistent with Seventh Circuit case law holding that a trade inscription on the cover of an owner’s manual does not authenticate the contents of the manual. See
Aside from the above, Rule 902(7) only provides for “presumptive authenticity,” and “does not preclude the opponent from challenging the authenticity of the offered writing, such as with proof that the document is a phony or bears a forged signature. Nor does it resolve questions as to the source or accuracy of information that is reported in self-authenticated documents. Objections can still be made that inadmissible hearsay statements or expert opinions are included in, for example, newspapers or periodicals.” 2 McCormick On Evid. § 229.1 (7th ed.). Stra-bala has presented evidence through his declaration rebutting the presumptive authenticity that might be conferred by Rule 902(7). For instance, he states that his signature is an electronic one which could have been placed there without his permission because Zhang and Zhou had access to it through 2DEFINE’s computers. He also states that these e-mails were located on the hard drive of his personal laptop, which was stolen from him by Zhang and Zhou.
Defendants do not expressly deny Strabala’s accusation that they stole his personal laptop. Their only argument is that the e-mails were found on Strabala’s work laptop. If the e-mails came from Strabala’s personal laptop and if Defendants stole that laptop, the evidence would be inadmissible. See Xyngular Corp. v. Schenkel,
While a conclusory foundational challenge made without any “sound reason to doubt” a document’s authenticity, Cejas,
Both email and electronic chats are faceless means of communication, with users identified by an email address or user-name. The recipient cannot, simply by looking at the email address or username provided in the document, readily identify the true identity of a message’s sender. Even where the email address or us-ername employed by the sender is an eponym, as likely is the ease here, the*95 sender’s identity is not immediately dis-cernable. In neither case can the recipient rely on the use of an email address or username to conclude that a third party has not made surreptitious use of an otherwise familiar account.
United States v. Shah,
Direct proof of authenticity would consist of testimony by Strabala and Ding Qing, or someone who witnessed those individuals sending the e-mails, attesting that the documents in question are the actual, un-doctored emails sent by the authors. See Fluker,
The Court acknowledges counsel’s statement in Defendants’ reply brief that they take allegations of evidence tampering seriously and that they investigated the evidence before submitting it to the Court by verifying through metadata that no tampering took place. See R. 45 at 5. The Court does not question counsel’s sincerity, although the proper way to submit this information for purposes of laying an evidentiary foundation would have been with a sworn declaration or
B. Subject Matter Jurisdiction 1. Standard op Proof
A challenge to a district court’s subject matter jurisdiction is made under Federal Rule of Civil Procedure 12(b)(1). Rule 12(b)(1) motions come in two varieties: (1) facial attacks and (2) factual attacks. See Apex Digital, Inc. v. Sears, Roebuck & Co.,
“The presumption of correctness that we accord to a complaint’s allegations falls away on the jurisdictional issue once a defendant proffers evidence that calls the court’s jurisdiction into question. At that point, a court need not close its eyes to demonstrated jurisdictional deficiencies in a plaintiffs case and accord a plaintiffs unproven allegations greater weight than substantive evidence to the contrary.” Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm’n,
2. Analysis
Strabala alleges that this Court has jurisdiction over the complaint pursuant to 28 U.S.C. § 1332(a)(2), which provides for original jurisdiction in the federal district court over claims between “citizens of a State and citizens or subjects of a foreign state.” The status of Zhang and Zhou as citizens of China, a foreign state, is undisputed. Therefore, the only issue is Strabala’s status as a “citizen of a State.” Strabala alleges that he is a citizen of Illinois. But Zhang and Zhou argue that, because Strabala lives in China, he is a citizen of the United States without being a citizen of any State. If Strabala is indeed “stateless,” he may not invoke this Court’s diversity jurisdiction under 28 U.S.C. 1332(a)(2). See Sadat v. Mertes,
a. Rules For Determining A Party’s Citizenship
“In federal law citizenship means domicile, not residence.” Am.’s Best Inns, Inc. v. Best Inns of Abilene, L.P.,
The Seventh Circuit has said that the test for domicile works well for cases in which residence coincides with intent, but is “becoming increasingly outdated as more people buy second or even third residences in different states.” Midwest Transit, Inc.,
Before examining the evidence in the record relevant to Strabala’s domicile, the Court notes that it finds extremely troubling Stra-bala’s refusal to provide Defendants with any pre-2014 discovery on the ground that jurisdiction is determined as of the date on which the lawsuit is filed. See Denlinger v. Brennan,
Zhang and Zhou could have moved to compel pre-2014 discovery, but they did not. Even so, the Court will infer from Strabala’s failure to provide pre-2014 discovery that any documents from this time period, had they been produced, would have pointed to Strabala’s domicile being somewhere other than Illinois. In addition, the Court will accord little to no weight to documents submitted by Strabala that concern a time period after the date on which the complaint was filed, finding that such documents are more likely to show a post-filing attempt by Stra-bala to create jurisdiction rather than a bona fide pre-existing intent regarding his domicile.
Notwithstanding the negative inference and discounting the post-February 9, 2015 evidence submitted by Strabala, the Court concludes that the preponderance of the evidence still supports subject matter jurisdiction in this case. In reaching this conclusion, the Court has relied on the undisputed facts in the record,
It is undisputed that Strabala was domiciled in Illinois from roughly 1987 or 1988 until at least March 2006. Therefore, for Illinois to no longer be Strabala’s domicile, there must be evidence not only that Stra-bala physically resides at a new location but that he does so with the “intention to remain there indefinitely, or, as some federal courts articulate it, the absence of any intention to go elsewhere.” Wright & Miller, supra, § 3613. Zhang and Zhou argue that the evidence overwhelming shows that Stra-bala is now domiciled in China. But the Court concludes otherwise, finding that the objective evidence of Strabala’s intent to maintain his previously established domicile in Illinois as against his residential status, combined with Strabala’s declaration regarding his domiciliary intent, show that Straba-la did not relinquish his domicile in Illinois despite his subsequent moves to Houston and then Shanghai.
b. Strabala’s Move To Houston
The following facts about Strabala’s move to Houston are essentially undisputed.
These facts are similar to those in Ziskind v. Fox,
To be sure, the facts in Ziskind are not identical to the facts here. For instance, the plaintiff in Ziskind had a valid Pennsylvania driver’s license, her car was titled, registered, located, and insured in Pennsylvania, and she was registered to vote in Pennsylvania and in fact had voted there while living in Chicago. Id. Strabala, on the other hand, has a Texas driver’s license, his car is or was titled and registered in Texas (although it is apparently now located in Chicago),
Defendants argue that Strabala’s purchase of a condominium in Houston and taking of a homeowner’s exemption on it support a finding that he intended to make Texas his home after moving there. In addition, Defendants cite to the facts that, when his employment with Gensler terminated, Strabala applied for unemployment benefits in Texas and that he also claimed his Texas address as his residence on various tax forms. The Court does not view any of these facts as conclusive of Strabala’s domiciliary intent either. Strabala contends that he purchased the Houston condominium for convenience, and that his wife made a mistake when she claimed a homeowner’s exemption on it. He claims that he filed for unemployment benefits in Texas because that is where his most recent job at the time he became unemployed was located. These are reasonable explanations unrelated to an intent to make Texas his home. Strabala does appear to have acted inconsistently with regard to taking a homeowner’s exemption on his two condominiums,
Defendants also cite to statements by Stra-bala purportedly made to a Houston reporter who wrote an article about Strabala, as well as the response Strabala gave in 2012 at his deposition in the SOM litigation when he was asked where he lived (he first gave his address in Shanghai, then, when asked for an address in the United States, gave his Houston address, and then, after further pressing by opposing counsel, gave his Chicago address). These statements, however, are not necessarily indicative of his intent regarding his domicile because they were made in an unrelated context. See Wright & Miller, su
The Court finds other facts more significant on the question of domicile than those cited by Defendants. In particular, when he moved to Houston, Strabala maintained his personal residence in Chicago and did not rent it out other than for a few days or weeks at a time. See Bangaly v. Baggiani,
These objective facts support Strabala’s explanation that, when he was hired by Gen-sler to work in Houston, he was uncertain about how his new job would work out and therefore he did not move there with the intention of making it his permanent home. Defendants are incorrect when they argue that Strabala’s statement of intent for purposes of this litigation should be disregarded completely. While Strabala’s testimony is self-serving, it nonetheless is “evidence of the intention requisite to establish domicile.” Texas,
Finally, the Court rejects Defendants’ argument, based on the Sadat case, that Stra-bala moved to Houston and now is trying to reassert an Illinois domicile without having re-established residency there. In Sadat, the plaintiff sold his residence in Pennsylvania, took all his belongings with him when he moved, and notified the U.S. Embassy that Beirut was his permanent overseas residence. These objective facts demonstrated that the plaintiff had given up his domicile in Pennsylvania when he moved to Beirut, so that, when he later was evacuated to Egypt, his stated intention of moving back to Pennsylvania without having ever re-established residency there was insufficient to establish that he was domiciled in Pennsylvania. Here, Strabala maintained his Chicago domicile by, among other things, keeping his Chicago residence. In other words, he never abandoned his Illinois domicile when he moved to Texas and therefore did not need to re-establish residency there in order to be considered an Illinois citizen.
c. Strabala’s Move To Shanghai
Zhang and Zhou argue that, because Stra-bala has lived and worked in Shanghai continuously since at least 2008, his intent must be to make Shanghai his permanent home. But, as already noted, physical presence alone does not determine one’s domicile, and in fact it is well recognized that there are “certain classes of litigants who do not reside where they are domiciled but nonetheless maintain their domiciles despite protracted periods of residence elsewhere,” including, for example, military personnel, prisoners, out-of-state students, and governmental or organizational officials. Wright & Miller, supra, § 3612. Strabala seeks to fit himself within this category of people who do not reside where they are domiciled when he argues the following:
The only reason I spend much of my time in China is because China is a significant market for the kinds of architecturally important buildings that I have the reputation and expertise to design. Clients want frequent access to their chief architect for their jobs. As a result, I had a choice as to how to conduct my business: I could travel every 2-3 weeks to Asia and spend more time in Chicago, which would increase costs and force me to live in a permanent state of jet lag, or engage in less traveling and spend more time in China servicing the clients for my work. I have chosen the latter as the most sensible way of running my architectural business.
R. 65-3 at 9-10 (¶ 42); see also id. at 64 (¶ 17) (“It is only because my principal clients are located in Asia and China that I am spending a good deal of time in China.”). Strabala further states with regard to his current residence in Shanghai that he has “every intention of retaining [his] primary residence and permanent home in Chicago.” Id. at 10 (¶ 43).
Courts have held that a person who resides elsewhere because of his job may nevertheless maintain his previous domicile. See, e.g., Washington,
Defendants make several arguments for why the Court should find that Strabala is domiciled in China, but none of them are persuasive. First, Defendants contend that when a person moves overseas, he gives up his previous domicile in the United States. In fact, however, “[m]ore evidence is required ... to establish a change of domicile from one nation to another than from one state to another.” Maple Island Farm v. Bitterling,
For example, in Kaiser v. Loomis,
The cases cited by Defendants, on the other hand, turn on the unique facts in each rather than any broad-based rule regarding moving overseas. For example, in Sadat,
Defendants also cite Newell v. O & K Steel Corp.,
The district court cases Defendants cite are similarly distinguishable. In Novel v. Zapor,
Second, the Court also rejects Defendants’ argument that Strabala has extensive connections to China which evince his intention to remain there. Aside from the fact that Strabala currently lives and conducts business in China, the only evidence of Strabala’s extensive connections to China to which Defendants cite is the facts that Strabala is a well-known figure in the Chinese architectural community and uses a Chinese name for business in China, and statements about his residency in Shanghai attributed to him in local newspaper and/or magazine articles. The Court does not think Strabala’s prominence in China or his use of a Chinese name for business in China are indicative of anything other than his business purpose for being there. And even if the Court can consider the newspaper and/or magazine articles as proof that Strabala made the statements attributed to him in them,
Third, Defendants point to the fact that Strabala has no definite date of return from Shanghai. The contention that a definite return date is required is not supported in the law. See Wright & Miller, supra, § 3613 (“even with a showing that a person is maintaining a new residence and mil do so for an indefinite period, he may not be held to have changed domicile when he is away from the former home for a limited purpose—for example, to obtain medical care, to pursue employment, or to serve in an elective or appointive office”) (emphasis added). For example, in Washington,
In addition to the above, Strabala’s 2015 Membership Application to The American Institute of Architects, signed by Strabala in November 2014, lists the Lake Shore Drive Condo as Strabala’s address. R. 33-1 (¶ 35); R. 33-11. And Strabala opened a bank account in Illinois in 2010 also using the Lake Shore Drive Condo address. R. 33-1 (¶36); R. 33-12. The fact that Strabala also maintains or has maintained bank accounts in either Texas or China and used those while in those places does not weigh against a conclusion that Illinois is his domicile, as one would expect him to have banking connections in the place where he is residing. But one would also expect, if Strabala had no intent to ever return to Illinois, that he would not maintain accounts in Illinois. Therefore, the salient fact is not that Strabala has bank accounts in China or that he had one in Houston, but that he has bank accounts in Illinois, which he never gave up and still uses today.
Strabala also advertises himself in his “Linkedln” page as an American architect employed and located in Shanghai, Seoul and Chicago, with promotional materials for 2DEFINE also indicating the existence of offices in Chicago, Seoul, and Shanghai. Zhang and Zhou dispute whether 2DEFINE has or ever had an office in Chicago, but they cannot dispute the evidence in the record showing that 2DEFINE advertised itself as having one. The relevant point is that Straba-la sought to maintain his ties with Chicago by advertising an office there rather than that an actual or official “Chicago office” exists. Finally, Strabala testified that he has had a landline telephone number with a Chicago area code for the last twenty to thirty years. One would not expect a person who intends to abandon his domicile in Illinois to maintain a landline telephone number in that state for more than two decades.
Ignoring all of the above, Defendants’ contention regarding Strabala’s current ties to Illinois being practically non-existent appears to be a reference solely to the fact that Strabala has not visited Chicago very often over the last several years. He testified that he tries to come to Chicago for about one month every fall, but that he did not do so in 2015 because his mother was gravely ill that year and he visited her in Arizona instead. While Strabala’s infrequent visits to Illinois are relevant, the Court finds they are not dispositive of his intent in this case. Rather, Strabala’s contacts to Shanghai evince an intent to do business there, while his contacts to Chicago evince an intent to both do business and more importantly to maintain a home here, and the latter is more significant for purposes of domicile. See DTC Telecom, L.L.C.,
PERSONAL JURISDICTION
A challenge to a court’s exercise of personal jurisdiction over a defendant is made under Federal Rule of Civil Procedure 12(b)(2). Strabala bears the ultimate burden of demonstrating by a preponderance of the evidence that the Court may exercise personal jurisdiction over Zhang and Zhou. See Durukan Am., LLC v. Rain Trading, Inc.,
The Court looks to Illinois’s long-arm statute to determine whether it may exercise personal jurisdiction over Defendants. See Philos Techs., Inc. v. Philos & D, Inc.,
The Seventh Circuit has noted that the nature of the constitutional minimum contacts inquiry of purposeful-direction/purposeful-availment differs depending on whether the plaintiffs claims are for breach of contract or lie in tort. Felland,
A. Count I—Defamation
Strabala’s defamation claim in Count I is based on e-mails allegedly sent by Defendants to persons in Chicago. Initially, Zhou contends that the e-mails were authored and sent by Zhang, and that he is only copied on them. Therefore, he claims, the e-mails may justify the Court’s assertion of personal jurisdiction over Zhang, but not him. Strabala alleges, however, that Zhou assisted Zhang in authoring the defamatory e-mails. There is no evidence in the record to contest that allegation, and, even if there were, the Court must resolve disputed facts in Strabala’s favor. Moreover, Zhou admits he co-authored the allegedly defamatory letter to Anthony Wood and participated in Zhang’s sending of the letter to Wood by e-mail with the intent that Wood would receive and read the letter. Therefore, Strabala has alleged sufficient facts against Zhou to warrant the Court’s assertion of personal jurisdiction over him if personal jurisdiction based on the defamatory e-mails is warranted.
Next, Defendants both argue, based on Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc.,
The fact that Real Action maintains an email list to allow it to shower past customers and other subscribers with company-related emails does not show a relation between the company and Indiana. Such a relation would be entirely fortuitous, depending wholly on activities out of the defendant’s control. As a practical matter, email does not exist in any location at all; it bounces from one server to another, it starts wherever the account-holder is sitting when she clicks the “send” button, and it winds up wherever the recipient happens to be at that instant. The connection between the place where an email is opened and a lawsuit is entirely fortuitous. We note as well that it is exceedingly common in today’s world for a company to allow consumers to sign up for an email list. We are not prepared to hold that this alone demonstrates that a defendant made a substantial connection to each state (or country) associated with those persons’ “snail mail” addresses.
Id. Defendants ignore, however, that immediately following the above explanation the Seventh Circuit distinguished the situation where there is “evidence that a defendant in some way targeted residents of a specific state, perhaps through geographically-restricted online ads.” Id. That situation, the court explained, “may be different” because “the focus would not be on the users who signed up, but instead on the deliberate actions by the defendant to target or direct itself toward the forum state.” Id.
Here, Strabala does not allege that Defendants sent out blast e-mails to anyone who happened to put their name on a list of subscribers. Instead, Strabala alleges that
Defendants also contend that the “expressly aimed” requirement is not met here because they “had no idea where the email recipients (or their computer servers) were located.” R. 31 at 11. The Court is skeptical that knowledge of the e-mail recipients’ location is required in the context of a defamation claim. Defendants cite to the Supreme Court’s recent decision in Walden, but that case does not speak to the issue except to the extent that it specifically distinguishes reputation-based torts from other torts for purposes of an analysis of the “express aiming” requirement. Walden involved airplane passengers who were detained by the defendant police officers at an airport in Georgia. The plaintiffs sued the officers in Nevada for fraud and another intentional tort, alleging the defendants had seized and kept the plaintiffs’ cash without probable cause and later lied about it in false affidavits.
In emphasizing the place where the defendants’ relevant conduct occurred, the Walden Court explained that it had reached a different result in Calder because the defendants’ conduct in that case could be said to have “occurred” in the forum state because of “the nature of the libel tort.” Id. at 1124. As the Court explained, “[hjowever scandalous a newspaper article might be, it can lead to a loss of reputation only if communicated to (and read and understood by) third persons.” Id. Accordingly, “the reputation-based ‘effects’ of the alleged libel [in Calder] connected the defendants to California, not just to the plaintiff.” Id. at 1123-24. Applying this reasoning here, the injury occasioned in a defamation case, like a libel case, occurs in the state where the e-mail recipients are located. But the Court in Walden specifically declined to discuss “the very different questions whether and how a defendant’s virtual ‘presence’ and conduct translate into ‘contacts’ with a particular State,” leaving those questions “for another day.” Id. at 1125 n.9.
The Court agrees with this analysis. Stra-bala alleges that Defendants targeted specific individuals who they knew had a business connection to him. That Defendants were able to do so while remaining ignorant of those individuals’ precise location “may render this case factually distinct from prior precedents finding jurisdiction for acts of express aiming, but not in a manner that warrants a different result.” Id. at *6; see also Cont'l Appliances, Inc. v. Thomas,
In any event, even if knowledge of the email recipients’ location is required, Strabala alleges that the people to whom Defendants addressed the e-mails were known by them to live in Illinois, and he submits as evidence his declaration stating that Zhang worked at the San Francisco office of SOM and knew the precise names of the Chicago staff of SOM whom he “selectively targeted with defamatory e-mails.” R. 41-1 at 4-6 (Strabala Deck, ¶ 13); see also R. 31-3 at 6 (¶ 26) (Zhou worked at Gensler’s Shanghai office from 2008 until 2010). Strabala also attaches pages from the internet showing that the location of at least some of the e-mail recipients was publicly available. See Premedics, Inc. v. Zoll Med. Corp.,
Finally, the Court also does not find convincing Defendants’ argument that one of the e-mail recipients, Anthony Wood, happened to be in China when the e-mail was sent so that he may have opened the e-mail there rather than at his office in Illinois. In the first place, Defendants offer only their own speculation as to when Wood was likely to have opened the e-mail. But in any case, their argument misses the point. If Defendants sent a defamatory e-mail to an e-mail address of a business or person located in Illinois, it does not matter, for purposes of deciding whether Defendants expressly aimed their conduct to and caused injury in the forum state, where the person who opened the e-mail was at the time he or she opened the e-mail. As the Seventh Circuit explained, “email accounts can generally be accessed in any state, so it may not make much sense to say that they were ‘sent to’ a Wisconsin address.” Felland,
In sum, Strabala has made a prima facie case for the Court to assert personal jurisdiction over Defendants as to Count I.
The factual basis for Count II is the tortious conduct allegedly committed by Defendants other than the allegedly defamatory e-mails, such as interfering with 2DEFINE’s website, clients, employees, contracts, and accounts receivables.
A motion to dismiss based on invalid service of process is brought pursuant to Federal Rule of Civil Procedure 12(b)(5). The burden of proving effective service of process is on the plaintiff. Cardenas v. City of Chicago,
A. Service Under The Hague Convention
Defendants first contend that service of process was inadequate because Stra-bala failed to serve them under Rule 4(f)(1) according to the methods prescribed by the Hague Convention. The Hague Convention is an international treaty formulated to provide a simpler way to serve process abroad. Volkswagenwerk Aktiengesellschaft v. Schlunk,
“The Hague Convention does not specify a time within which a foreign country’s Central Authority must effect service, but Article 15 does provide that alternate methods may be used if a Central Authority does not respond within six months.” Fed. R. Civ. P. 4, Advisory Committee Notes, 1993 amendments. “The decision whether to allow alternate methods of serving process under Rule 4(f)(3) is committed to the ‘sound discretion of the district court.’ ” Brockmeyer v. May,
Court-directed service pursuant to Rule 4(f)(3) is appropriate when, for example, “there is a need for speed that cannot be met by following the Hague Convention methods, when the Central Authority of the foreign country has refused to serve a particular complaint (perhaps based on its own public policy or substantive law limitations), or when a foreign country’s Central Authority fails to effect service within the six-month period provided by the Hague Convention.” 4B Fed. Prac. & Proc. Civ. § 1134 (4th ed.) (emphasis added). Strabala waited six months, and, not having heard from the Ministry regarding his request for service, he moved the Court for an order pursuant to Rule 4(f)(3) to serve Defendants by alternate means. Strabala was not out of line in doing so, and the Court’s grant of that motion was appropriate. See Bazarian Int’l Fin. Assocs., L.L.C. v. Desarrollos Aerohotelco, C.A., 168
B. Proof of Service
Rule 4(f)(3) permits the court to order service by any means not prohibited by international agreement, as long as the method of service comports with constitutional notions of due process. U.S. Commodity Futures Trading Comm’n,
Proof of service is governed by Rule 4(0, which provides in relevant part that where, as here, service is made under Rule 4(f)(3), service must by proved “by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.” Fed. R. Civ. P. 4(0(2)(B), A receipt signed by the addressee is usually not available when service is made by e-mail. The “other evidence” alternative typically is a signed “return” from the server. In this ease, Strabala has submitted a return of service signed by someone named Pamela M. Ickes, which states that, “[p]ursuant to this Court’s Order of November 17, 2015,1 served Defendants Qiao Zhang and Zhou Shimiao on that same day with the Complaint and Summons via Federal Express and personal email. I received no ‘bounce back’ or other notice of rejection of those emails to either Defendant.” R. 33-17.
Ordinarily, “[a] signed return of service constitutes prima facie evidence of valid service which can be overcome only by strong and convincing evidence.” Homer v. Jones-Bey,
But Zhang’s affidavit also is problematic. He states only that he “understand^] that Strabala’s attorney has stated that he attempted to e-mail Illinois Litigation documents to me” at an e-mail address that Zhang says is incorrect. Id. In other words, Zhang has no personal knowledge of what email addresses were used by Ms. Ickes for service, and, in fact, indicates by his affidavit that his testimony concerning Ms. Ickes’ use of an incorrect e-mail address is based on hearsay upon hearsay (ie., an unidentified person told Zhang that Strabala’s attorney told the unidentified person that the incorrect e-mail address was used). To make matters worse, the information Zhang apparently received informing him that the wrong e-mail
It is possible that the source of Zhang’s information about what e-mail addresses were used is mistaken, and that Ms. Ickes in fact used the correct e-mail address as shown on the motion to serve by alternative means. If that is the ease, Ms. Ickes’ return of service, which states that she served Zhang by e-mail and received no “bounce back,” would “carry the day.” Fleet Mortg. Corp.,
The Court echoes the sentiments expressed by Judge Evans in his dissent in United States v. Ligas,
Ultimately, it is Strabala’s burden of proof to establish legally sufficient service of process, and the Court is constrained to hold that he has not met that burden here because of the fact that Ickes’ return of service does not state the e-mail address to which she sent the summons and complaint. But Federal Rule of Civil Procedure 4(1 )(3) provides that “[fjailure to prove service does not affect the validity of service. The court may permit proof of service to be amended.” Accordingly, Strabala can file an amended return of service stating, under penalty of perjury, that the complaint and summons were sent to one of Zhang’s correct e-mail addresses, specifically setting forth the e-mail address that was used. If Strabala is unable to provide an appropriate amended proof of service—either because the previous e-mail service was not sent to a correct address or because information concerning what e-mail addresses Ickes in fact used is no longer available—Strabala can cure the defect in the previous service attempt by re-sending the summons and complaint to the correct e-mail
In sum, the Court finds that (1) service of process on Zhou was effective; and (2) service of process on Zhang has not yet been shown, but, even if the original service was defective, the defect does not warrant dismissal of the complaint and instead the Court will quash the original service and Strabala can attempt to cure the defect by re-serving Zhang or obtaining a signed waiver of service from him. Accordingly, Defendants’ motion to dismiss the complaint for ineffective service of process is denied.
CONCLUSION
For the foregoing reasons, it is hereby ordered that:
1. Defendants’ Motion to Vacate, R. 22, is granted.
2. Plaintiffs Motion to Strike, R. 41, is granted.
3. Defendants’ Motion to Dismiss, R. 30, is denied in part and granted in part as follows: (1) Defendants’ motion to dismiss for lack of subject matter jurisdiction is denied; (2) Defendants’ motion to dismiss for lack of personal jurisdiction is denied as to Count 1 (Defamation), and granted without prejudice as to Count II (Intentional Interference); (3) Defendants’ motion to dismiss for lack of service of process is denied; and (4) Defendants’ motion to dismiss Count II (Intentional Interference with Business Relations) for failure to state a legally adequate claim for relief is granted.
Further, as to Defendant Zhang, Plaintiff is ordered to file within ten days of entry of this memorandum opinion and order any one of the following: (i) an amended proof of service establishing that the original service was effective, (ii) a new return of service establishing that the defect in the original service has been cured, or (iii) proof of waiver of service.
In addition, if Plaintiff intends to seek leave to file an amended complaint, he should file a proposed amended complaint with a brief of no more than five pages explaining why the proposed amended complaint cures the defects in the original complaint identified in this order. The proposed amended complaint and brief, or else a motion for an extension of time, must be filed within fourteen days of the date on which this memorandum opinion and order is entered. Defendants may file a response to Plaintiffs brief, also limited to no more than five pages in length, and shall do so on or before seven days after Plaintiff files the proposed amended complaint. No reply brief is to be filed.
If Plaintiff does not seek leave to file an amended complaint, Defendants shall file an answer to the complaint on or before thirty days after the date on which this memorandum opinion and order is entered. A status hearing is set for December 22, 2016 at 9:00 a.m. The parties are directed to file a proposed joint discovery plan on or before December 19, 2016.
Notes
. Strabala contends that Defendants should be referred to as “Qiao” and "Zhou” because in China the family name comes before the given name. See https://www.travelchinaguide.com/ essentiallchinese-name.htm, Defendants respond that they know their own names and that their respective family names are Zhang and Zhou. The Court will take Defendants' word and refer to them as Zhang and Zhou.
. The facts in this section are taken from the complaint, Strabala’s deposition testimony and responses to interrogatories, three sworn declarations by Strabala, two sworn affidavits each by Zhang and Zhou, an Affidavit of Service by Pamela Ickes, and various other exhibits submitted by the parties.
. The unique design features of the Shanghai Tower, including its double layer transparent fa-gade or "two skins,” are described in 2DEFINE promotional materials, as well as in an informative Wikipedia article, see https://en.wikipedia.org/ wiki/Shanghai-Tower.
. It appears that the company’s name originally was Strabala & Woo Architects2 LLC, which was later changed to Strabala & Woo Architects, LLC, and then to Strabala + Architects LLC. See R. 33-8. The Court will refer to the company simply as "S&W.”
. The four partners of 2DEFINE also opened a Chinese business entity, DeFan Architectural Consulting Shanghai Ltd., to facilitate 2DEFINE doing business with Chinese clients. The Court refers only to 2DEFINE in this opinion without purporting to distinguish between that entity and its Chinese counterpart.
. Although it vacated and remanded, the Seventh Circuit expressed some doubt as to the validity of Gensler’s claims. See Gensler v. Strabala,
. The Chinese litigation apparently includes three different lawsuits: (1) a lawsuit brought by Zhou against Strabala; (2) a lawsuit brought by Strabala against Zhang and Zhou; and (3) a lawsuit brought by Zhou’s Chinese architecture firm, Tufan Architects Design Firm, against Stra-bala. Zhou states in his affidavit that the first two lawsuits have been resolved, while the third was still pending at the time the affidavit was filed.
. When a party has failed to plead or otherwise defend a lawsuit, entry of default under Rule 55(a) must precede grant of a default judgment under Rule 55(b). Wright & Miller, 10A Fed. Prac. & Proc. Civ. § 2682 (4th ed.). Here, the January 19, 2016 Order of Default Judgment (R. 17) refers to a "default judgment,” and it is preceded by the Court’s January 14, 2016 minute order granting "Plaintiff’s motion for default judgment.” R. 15. Nevertheless, the Order of Default Judgment contemplated a prove-up hearing to establish the amount of Strabala’s damages. Therefore, it is clear that a final default judgment had not yet been entered in the case at the time Defendants filed their Motion to Vacate, see In re Catt,
. Strabala cites to other facts that support that suspicion. For instance, on February 27, 2016, after this Court's entry of default, written notice from the Chinese Ministry of Justice was re
. The motion erroneously states that the exhibits in question are G and H. See R. 41 at 1.
. On the second point, the Court’s concerns relate not only to Strabala's accusations of potential theft and tampering of documents on Straba-la’s laptop, but also, as will be discussed in the next section, to Defendants’ contentions that Strabala was "evasive” and "impertinent” (R. 56 at 3 n.l) at his deposition, and that he took an unreasonable position in jurisdictional discovery to avoid producing relevant information. The Court is not at this time finding in favor of either side on their allegations of misconduct and/or bad faith against each other, and specifically does not make any finding that impropriety has occurred. Nevertheless, both Strabala and Defendants should be aware that tire Court takes the other sides' allegations of misconduct seriously, having concluded from an examination of the record that neither side's accusations are frivolous. The parties are forewarned that, going forward, the Court will expect full compliance with tire rules of civil procedure and cooperation in discovery, and that gamesmanship will not be tolerated.
. Strabala could be "deemed” to have verified the e-mails’ authenticity if he was the party who produced them. See, e,g., In re Homestore.com, Inc. Sec. Litig.,
. The information Defendants originally provided to the Court about the source of the e-mails was vague. See R. 39 at 6 n.2 (stating that Defendants were "led to this new evidence ... by Plaintiff's reference to the SOM case in his Opposition and Defendants’ resulting review of the record in that case”). It was only after Strabala filed the Motion to Strike that Defendants admitted that the e-mails were retrieved by them from Strabala’s work laptop.
. Strabala also states that there is no way he would have received the Ding Qing e-mail with the attached written interview because, by the date on the e-mail, "his email account was closed when the 2DEFINE website was shut down. The record does not contain sufficient facts for the Court to evaluate the accuracy of this statement.
. Even if the Court were to find that Defendants have provided a proper foundation for Exhibits F and G, the admissibility of those exhibits to prove the matters asserted by Defendants is questionable. The letter from Strabala to his wife is a privileged communication between husband and wife. See 735 Ill. Stat. Ann. 5/8-801. Defendants contend that Strabala waived the marital privilege by sending the letter via e-mail from his work computer. See R. 45 at 2-3 (citing, inter alia, United States v. Hamilton,
. Like his refusal to provide pre-2014 discovery, Strabala's behavior at his deposition also is troubling to the Court. For example, Strabala was asked "what brings you to Chicago this week,” to which he replied "I think it was a 747.” R. 65-2 at 5 (Strabala Dep. 11-12). When asked "[w]hen did you arrive in Chicago," he responded "37 hours after I left Shanghai.” Id. Even if intended as mere quips, these responses were not appropriate for a deposition. Strabala also responded inappropriately to questions by defense counsel seeking to determine the last time he had been in Chicago. Indeed, the transcript on this point reads like an Abbott and Costello routine, as the following illustrates:
Q. And before the trip to Chicago that you are on right now, when was the last time you were in Chicago? A. At this time I can’t remember. Q. Was it more than a year ago? A. At this time I can’t remember. Q. Was it more than two years ago? A. At this .time I can't remember. Q. You can't remember whether before this week or the last two weeks you’ve been in Chicago? A. I think that’s what I said. Q. Okay. So it's not the case that you come to Chicago at least once a year? A. No, I try to come to Chicago as much as I can. Q. I didn’t ask you that. I asked you whether it is the case that you don’t always come to Chicago at least once a year? A. I don’t understand the question. It's too confusing. Could you simplify it? Q. I will try. Before the trip that you were engaged in here in Chicago presently and we are in Chicago during this deposition, your testimony is that you can’t recall the last time you were in Chicago, correct? A. No. Q. Please tell me what’s wrong with my question. A. I said at this time I can’t remember. Q. Do you draw a distinction between remember and recall? A. Not really.... Q. Right. Well, I also asked you whether it was in the last year, within the last two years—A. And I said I can’t remember.... Q. And are you on any pharmaceuticals or other substances that would affect your ability to remember the last time you were in Chicago that you are aware of? A. No, and I didn’t say I can't remember the last time I was in Chicago. I can't remember the last couple years the exact dates I was in Chicago.
Id. at 5-6 (Strabala Dep. 13-15). After this initial exchange, defense counsel for the most part was able to pin Strabala down regarding his previous trips to Illinois. It appears that those trips have been infrequent over the last five years with no visits at all in 2015.
. Had the facts on which the Court relies herein for finding subject matter jurisdiction been disputed, an evidentiary hearing would have been required, particularly given that concerns have
. The rule regarding the continuation of an established domicile is more than just an eviden-tiary presumption in favor of an individual’s old, established domicile. It is a substantive rule premised on "a judicial policy determination that in ascertaining diversity jurisdiction in a highly mobile society there is a need to fix domicile with some reasonable certainty at the threshold of litigation.” Gutierrez v. Fox,
. Even if Strabala did acquire a new domicile in Texas when he moved to Houston in 2006, alien diversity jurisdiction still would exist in this case so long as Strabala did not later give up his Texas domicile when he moved to Shanghai. Therefore, it may seem unnecessary to analyze whether Strabala gave up his Illinois domicile in favor of Texas. In fact, however, such an analysis must be conducted, both because Strabala expressly disavows relying on Texas as his state of domicile, see R. 65-2 at 4 (Strabala Dep. 9), and because the evidence regarding Strabala's intent when he moved from Houston to China cannot adequately be evaluated without also considering Strabala’s previous intent when he moved from Chicago to Houston.
.See also Gutierrez,
. Strabala states that his car was originally located in Illinois, driven to Texas when Strabala moved there, and then shipped back to Illinois when Strabala moved to Shanghai. But his testimony about the car originally being located in Illinois seems inconsistent with his other testimony that the car has never been registered in Illinois.
. Strabala states in his declaration that he has always been registered to vote in Illinois as well as active in the voting process. Courts have found that "voting in a state raises a presumption of citizenship in that state.” Wright & Miller, supra, § 3612. The Court declines to rely on this fact here, however, because Strabala has only submitted evidence of his 2016 voter registration card and has declined to provide discovery regarding any dates prior to 2014.
. Zhang and Zhou point out that Strabala has maintained his Texas driver’s license to this day, despite having moved from Texas and despite denying an intent to make Texas his domicile. Strabala testified it was convenient to keep that license while living in Shanghai because it was renewable by internet, and the Court finds that explanation credible.
. Strabala states in his declaration that he "regularly complete[s] a 'homeowners exemption’ form for his Chicago co-op," R. 33-1, (¶ 15), but he attaches as proof only his 2016 Illinois homeowner's exemption form. The record shows that he likely took a homeowner’s exemption on his Houston condominium in the years 2006 through 2008.
.The record shows that Strabala used the Houston address on a tax form for S&W. See R. 41-2 at 35. The Court is unable to determine for certain whether Strabala did the same for any tax documents for years prior to 2014 because Strabala refused to produce that information in discovery, and the Court therefore presumes that he did so.
. See also United States v. Knight,
. Two other cases cited by Defendants actually support Strabala's position here because, in the face of conflicting evidence regarding domicile, the courts in those cases credited the statements of intent of the party whose citizenship was at issue (the defendant in both). See Al-Turki,
. Zhang and Zhou both state that they personally heard Strabala make some of the statements in the articles or interviews. That fact, however, lays a foundation only for Zhang and Zhou to
. The only evidence in the record on where Strabala's wife spends her time is Strabala’s testimony that she lives six months in Shanghai with him and six months in Chicago. Defendants’ affidavits state that Strabala’s wife lives with him in Shanghai, but the Court concludes that those statements are not inconsistent with Strabala’s more specific statement that she splits her time between Shanghai and Chicago. In any event, if there is an inconsistency, the Court credits Stra-bala’s testimony, who obviously would have more particularized knowledge of the exact location of his wife at any given time than either of Defendants.
. Zhang and Zhou argue that "a floating intention to return at some future period” is insufficient for purposes of maintaining a previously established domicile. R. 64 at 5 (quoting Gilbert,
. A number of cases appear to reach a contrary conclusion in holding that the defendant must have knowledge of where the target of his or her internet-based conduct is located. But those cases either (1) do not involve a reputation-based tort, where the defendant’s tortious conduct by definition occurred in the place where the defamatory statements were published, see, e.g., Rice v. Karsch,
. The Court believes this is the proper rule even if, as Defendants contend, their intent was that Wood open the e-mail with the letter attached while he was in China attending a conference. See, e.g., Fletcher v. Doig,
. Normally, before concluding that a prima fa-cie case for personal jurisdiction exists, the Court would also have to consider whether jurisdiction in Illinois would violate notions of fair play and substantial justice. See Felland,
. Specifically, the complaint alleges that: (1) Defendants secretly created two Chinese partnerships with names similar to 2DEFINE and used those partnerships to misappropriate funds owed to 2DEFINE, R. 1 (¶¶ 20-22); (2) Defendants stole property belonging to 2DEFINE and to Strabala, stopped paying 2DEFINE employee salaries and expenses and, in effect "destroyed the Shanghai office of 2DEFINE by diverting company funds to their personal bank accounts, leaving 2DEFINE with no income and only debts,” id. (¶ 24); (3) Zhang falsely advertises on the Internet to individuals in the United States that he has a valid U.S. architectural license, id. (1126); (4) Defendants have been doing business with contracts, equipment and some employees diverted from 2DEFINE, and they have tortiously interfered with Strabala's business and future economic prospects by among other things visiting at least one of Strabala’s clients, demanding contractual information for a project on which Strabala was hired, and indicating that payments due Strabala should be diverted to Defendants instead, id. (¶¶ 26-28); and (5) Defendants have been providing Strabala's confidential business information to Gensler and SOM, id. (¶ 29).
. Count II is dismissed for the additional reason that it fails to state a legally sufficient claim for relief. To state a claim for tortious interference with contract, a plaintiff must allege, among other things, a valid contract, a breach of that contract, and resulting damages. See George A. Fuller Co. v. Chi. Coll. of Osteopathic Med.,
. Defendants quote from the Supreme Court’s opinion in Volkswagenwerk Aktiengesellschaft to the effect that "compliance with the [Hague] Convention is mandatory in all cases to which it applies.”
.. The Court also ordered service by Federal Express delivery, but that method proved unsuccessful. See R. 33-17 (¶2) (stating that an "unknown” person advised the Fed Ex delivery person that Defendants "did not reside where their addresses showed they did," and, as a result, "the Fed Ex packages were returned ... with the notation regarding why the packages were not accepted").
. Defendants do argue that service by e-mail does not comply with Chinese law. But nothing in Rule 4(f)(3) requires that the alternative service ordered by the court pursuant to that provision must comply with the law of the foreign state where the service is to be effected. Defendants fail to provide any case authority to the contrary, and therefore have waived that argument. See United States v. Hassebrock,
. Zhou admits that he received the e-mail service.
. As Defendants point out, the form of Ms. Ickes' return of service leaves much to be desired in other ways as well. For one, although she represents that she has been "first duly sworn on oath,” Ms. Ickes' signature is not notarized. Moreover, Ms. Ickes does not identify herself, her employer, or her relationship, if any, to the parties in this case. Nevertheless, Rule 4(Z)(2)(B) does not impose any specific requirements on the form of the return of service other than that it must "satisfy[] the court that the summons and complaint were delivered to the addressee." Therefore, the Court focuses here on the primary problem it finds with Ms. Ickes' return of service, which is that it does not state the e-mail addresses to which the summons and complaint were sent.
. Strabala’s motion to serve by alternative means states that one of the e-mail addresses Strabala intended to use for service on Zhang was zq.phone@gmail.com. Zhang states in his affidavit that this e-mail address is correct. But he contends that the e-mail address actually used by Ickes was zp.phone@gmail.com; that is, he contends that Ms. Ickes mistakenly substituted a "p” in place of the "q” in the e-mail address. But, again, he has no personal knowledge of whether Ms. Ickes indeed made a typographical error, and there is no other evidence in the record from which the Court can conclude that she did. At the same time, the evidence in the record to support the conclusion that Ms. Ickes did not make a typographical error in the e-mail address is also very thin.
. The Court notes that Defendants state in their motion that Strabala could have sent them a waiver of service form instead of attempting service by e-mail. If Defendants intended to suggest that they would have waived service, then the Court is at a loss as to why they do not just do so now, other than, perhaps, their erroneous belief that the case must be dismissed for ineffective service.