ORDER GRANTING SPECIALLY APPEARING DEFENDANTS’ MOTION TO QUASH SERVICE OF INDICTMENT
INTRODUCTION
This matter comes before the Court upon consideration of the Motion to Quash Service of the Indictment, filed by specially-appearing defendants, Pangang Group Company, Ltd. (“Pangang Group”), Pan-gang Group Steel Vanadium & Titanium Company, Ltd. (“PGSVTC”), Pangang Group Titanium Industry, Ltd. (“Titanium”), and Pangang Group International Economic & Trading Company (“PIETC”) (collectively, the “Pangang Defendants”).
The Court has considered the parties’ papers, relevant legal authority, the record in this case, and it has had the benefit of oral argument. The Court HEREBY GRANTS the motion to quash.
BACKGROUND
This case arises from charges filed on July 27, 2011, against Walter and Christina Liew (the “Liews”). In a criminal complaint, the United States charged the Liews with witness tampering
On February 7, 2012, a grand jury issued a superseding indictment, naming eight additional defendants, including the Pangang Defendants. The Pangang Defendants are charged with: (1) conspiracy to commit economic espionage, in violation of 18 U.S.C. section 1831(a)(5); (2) conspiracy to commit theft of trade secrets, in violation of 18 U.S.C. section 1832(a)(5); (3) attempted economic espionage, in violation of 18 U.S.C. section 1831(a)(3)-(4). (Docket No. 64, Superseding Indictment, ¶¶ 12-54, 57-58, 90-95.)
The Government alleges that Pangang Group is a state-owned enterprise of the People’s Republic of China (“PRC”), which is controlled by the State-Owned Assets Supervision and Administration Commission of the State Council.
On November 29, 2011, the Government asked Wang Qizhi (“Mr. Wang”), Pan America’s General Manager, if he would accept service of a letter to Pangang Group’s chairman and legal representative. (Declaration of George D. Niespolo (“Niespolo Deck”), Ex. 1.) In response, Mr. Wang’s counsel advised the Government that Mr. Wang and Pan America were not authorized to accept service for any of the Pangang Defendants. (Niespolo Deck, Ex. 1.) Nonetheless, on February 9, 2012, the Government delivered a summons for each of the Pangang Defendants to Brenda Kong, Pan America’s officer manager at that time. (Wang Deck ¶ 17; Axelrod Deck, ¶ 4, Ex. A.) The Government also sent copies of those four summons via certified mail to Pan America’s office in New Jersey. (Axelrod Deck, ¶¶ 3-5, Ex. B.)
The Court shall address additional facts in the remainder of this Order.
ANALYSIS
The Pangang Defendants move to quash service of the summons on the basis that the Government failed to comply with the requirements of Federal Rule of Criminal Procedure 4(c) (“Criminal Rule 4”). The Government agrees that it bears the burden of demonstrating that service was
A. The Pangang Defendants’ Objections to the Szamossegi Declaration.
The Pangang Defendants object to Mr. Szamossegi’s declaration on the basis that it is improper expert testimony, but they do not contest his qualifications. They also do not suggest Mr. Szamossegi does not possess “specialized knowledge” that “will assist the trier of fact to understand the evidence or to determine a fact in issue ...” See Fed.R.Evid. 702. Therefore, the Court overrules’ the Pangang Defendants’ objections to the Szamossegi Declaration on this basis, and it shall not strike the declaration in its entirety.
The Pangang Defendants also object to those portions of the Szamossegi Declaration, in which he sets forth opinions about the structure of corporations in the PRC, in general, and which are not directed to the Pangang Defendants specifically, on the basis that this testimony is irrelevant. The Court sustains that objection. See Fed.R.Evid. 401. Accordingly, the Court has not considered paragraphs 3-12 or the exhibits referenced in those paragraphs.
The Pangang Defendants also object to several exhibits attached to the Szamossegi Declaration on the basis that they are documents in the Chinese language for which no translation is provided. The Court finds sustains the objections to those exhibits. The Government was aware that it would bear the burden of proof on this motion. If it required an extension of time to obtain translations to complete its evidentiary record, it could have asked for one. Accordingly, the Court has not considered page 19 of Exhibit 6. The Court also has not considered Exhibits 15, 21-23, 25, 29, and 31.
B. The Requirements of Federal Rule of Criminal Procedure 4.
Pursuant to Criminal Rule 4, if a complaint or affidavits filed with a complaint establish “probable cause to believe that an offense has been committed and that the defendant committed it,” and at the request of an attorney for the government, a judge may issue a summons instead of a warrant. Fed.R.Crim.P. 4(a). A summons may be served “within the jurisdiction of the United States or anywhere else a federal statute authorizes an arrest.” Fed.R.Crim.P. 4(c)(2).
Under Criminal Rule 4(c)(3), a summons may be served “on an organization by delivering a copy to an officer, to a managing or general agent, or to another agent appointed or legally authorized to receive service of process” (hereinafter “the delivery requirement”). Fed.R.Crim.P. 4(c)(3)(C). The summons also must be mailed “to the organization’s last known address within the district or to its principal place of business elsewhere in the United States” (hereinafter “the mailing requirement”).
The Government’s primary argument is that it has satisfied the delivery and the mailing requirements, because Pan America was established to be the general agent and the principal place of business in the United States for the Pangang Defendants as a group of companies. (See, e.g., Docket No. 174, Transcript of Proceedings for June 8, 2012 (“6/8/12 Tr.”) at 4:8-12, 6:2-9; Docket No. 175, Transcript of Proceedings
The interplay between personal jurisdiction, sufficiency of service, agency, and alter-ego has been addressed frequently in civil cases. See, e.g., Bauman v. Daimler-Chrysler Corp.,
1. The Delivery Requirement.
To satisfy the delivery requirement, the Government must show it has served a summons on the Pangang Defendants’ managing or general agent.
The Ninth Circuit has set forth a two part test to determine whether an agency relationship exists between organizations, for example between a foreign parent and a domestic subsidiary. Bauman,
Second, the court inquires whether the foreign defendant exercises a measure of control over the domestic subsidiary. Id. at 920.
a. Pan America and Pangang Group.
In order to show that Pan America performs services for Pangang Group that meet the “sufficient importance” test, the Government relies on letters from Pan-gang Group’s chairman, Fan Zhengwei (“Chairman Fan”), in which he describes. Pan America as “our Northern Hemisphere” head office. (Axelrod Decl., Ex. D at 000005; Axelrod Decl., Ex. F at 000001, 000006.) Chairman Fan also states that Pan America “acts as an agency for trade business ... and ... is in the process of setting up a comprehensive marketing system and to develop a stronger business relationship between China and the United States.” (Id., Ex. D at 000006, 000009, Ex. F at 000006-7, 0000010.) The Government also relies on letters in which Mr. Wang described Pangang Group as the “head office” of Pan America. Mr. Wang also described Pan America as Pangang Group’s marketing arm in the Americas and stated that Pan America represents Pangang Group in the Americas. (Patillo Decl., Exs. F, G; see also, e.g., Axelrod Decl., Ex. F at 000001.) The record also includes customer declarations, discussed in the following section, which suggest that Pan America has taken over some duties that Pangang Group employees used to perform.
In Bauman, the plaintiffs brought suit against a German corporation in the United States under the Alien Tort Statute and the Torture Victims Protections Act, based on allegations that one of the defendant’s subsidiaries had collaborated with Argentinian security forces to kidnap, detain, torture and kill the plaintiffs or their relative during Argentina’s “Dirty War.” Bauman,
The Ninth Circuit agreed with the plaintiffs. It found that the subsidiary was the exclusive distributor for the foreign defendant’s vehicles in the United States and that “a critical aspect of’ the foreign defendant’s business operations was to sell its vehicles. The court also noted that the United States market, and California in particular, accounted for a fair percentage of those operations, such that the defendant “simply could not afford to be without a U.S. distribution system.” Id. at 914, 922. Because the defendant would either have to sell the vehicles itself or establish a new entity to do so, the court concluded that the subsidiary’s services were “sufficiently important” to the defendant. Id.
Neither party suggests that Pan-gang Group is merely a holding company, such that if it divested itself of Pan America, it could continue to operate as a holding company. See, e.g., Hickory Travel,
Turning to the second element, control, “ ‘[t]o form an agency relationship, both
Here, the Government relies primarily on the fact that Mr. Wang and Mr. Zhang entered the United States on Ll-A visas. The Government emphasized at oral argument that an Ll-A visa is considered an intracompany transfer. See 8 C.F.R. § 214.2(Z )(l)(i) (“An alien transferred to the United States under this nonimmigrant classification is referred to as an intracompany transferee.... ”). An Ll-A visa is available
[to] an alien who, within three years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive or involves specialized knowledge
8 U.S.C. § 1101(a)(15)(L); 8 C.F.R. § 214.2(Z )(l)(ii)(A) (stating that nonimmigrant alien may be employed by a “branch of the same employer or a parent, affiliate, or subsidiary” of the employer).
In order to obtain an Ll-A visa, a petitioner must establish, inter alia, that “the petitioner and the organization which employed or will employ the alien are qualifying organizations.... ” 8 C.F.R. § 214.2(i )(3)(i). A “qualifying organization” is defined as “a United States or foreign firm, corporation, or other legal entity which,” inter alia, “[m]eets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary specified in paragraph (l )(l)(ii) of this section.... ” Id. § 214.2(i )(ii)(G). “Parent” is defined to mean “a firm, corporation or other legal entity which has subsidiaries.” Id. § 214.2(Z )(ii)(I). “Subsidiary” is defined to mean “a firm, corporation, or other legal entity of which a parent owns, directly, or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.” Id. § 214.2(Z )(ii)(K).
The Government submits a declaration from Aaron York, who attests that the control described in the regulation “may be de jure [as a matter of law] by reason of ownership of 51 percent or control of voting shares through partial ownership of proxy votes. A petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, the management and direction of the subsidiary, and any other fact affecting actual control of the entity.” (Docket No. 123, Declaration of Aaron York (‘Work Deck”), ¶¶ 6-7, 9.)
The Government also relies on a document entitled “Pan America, Inc. New York Company General Affairs Policies and Procedures,” which states that “Pan America, Inc., New York ... has set out the following Policies and Procedures” (“hereafter “the P & P”).... ” (Patillo Deck, Ex. D.) The document also states that “[tjhis P & P basically is in line with the Head office’s General Affairs P & P and followed by some minor amendments in order to comply with the common practice of the local business ■ environment.” (Patillo Deck, Ex. D at p. 3.) Pan America is a New Jersey corporation and, thus, this document appears to be a draft. However, even if the Court were to assume that a similar document was prepared after Pan America was incorporated in New Jersey, the Court finds the document sufficiently distinguishable from the comprehensive agreement discussed in the Bauman case, such that it does not support a finding that the Pangang Group had the right to control Pan America’s activities or that Pan America assented to that right. See Bauman,
Because the Court finds that the Government has not- established that Pangang Group has the requisite control over Pan America, the Court finds that the Government has not established that Pan America acted as Pangang Group’s general agent. Accordingly, as to Pangang Group the Government has not established that it complied with delivery requirement. However, even if the Government had shown that Pan America is Pangang Group’s general agent, the Court still would grant the motion to quash service on Pangang Group for the reasons discussed in the remainder of this Order.
b. Pan America and PIETC.
In order to establish that Pan America performs services for PIETC, which satisfy the sufficient importance prong of the general agency test, the Government submits declarations from individuals who worked for customers of PIETC before Pan America was established. (Docket No. 128, Declaration of Bradley Decker (“Decker Deck”); Docket No. 131, Declaration of Laird Walker (“Walker Deck”); Docket No. 135, Declaration of Phil Poce (“Poce Deck”); Docket No. 136, Declaration of Spencer Brog (“Brog Deck”).)
These declarations show that, after Pan America was established, some customers continued to negotiate substantive matters regarding their purchases directly with PIETC, or Pangang Group, rather than Pan America. (Poce Deck, ¶ 3; Brog Deck, ¶ 3.) The Government acknowledges this fact, but it argues that Pan America took over “back-office” support from PIETC. It claims that, in that role, Pan America provided the “same services” that PIETC used to provide to its customers. (See, e.g., Decker Deck, ¶¶ 3-4; Walker Deck, ¶ 2; Brog Deck, ¶ 3.) Specifically, Pan America appears to have provided,
PIETC does not suggest that it is merely a holding company, such that if it divested itself of Pan America, it could continue to operate as a holding company. See, e.g., Hickory Travel,
Taking all of this evidence into account, the Court concludes that the Government has put forth sufficient facts to show that the services Pan America performs are integral to PIETC’s core business, such that PIETC would perform them itself, as it apparently used to do, if Pan America was not available to perform these services.
Turning to the element of control, the Government again relies heavily on the Ll-A visa applications. For the reasons set forth above, the Court does not find those applications establish a level of control commensurate with a general agency relationship.
The Government also relies on evidence that, after Pangang Group merged into Angang Group, PIETC requested that Pan America merge its offices with Angang Group’s United States subsidiary, Angang America, Inc., and that Pan America complied. (Patillo Deck, ¶ 4.m, Ex. 4; see also Declaration of Pasquale Garofalo (“Garofalo Deck”), ¶¶ 1-5, Ex. A.)
“A person may be' an agent although the principal lacks the right to control the full range of the agent’s activities.” Bauman,
The Court finds that the Government has shown that Pan America acts as PIETC’s general agent. Accordingly, as to PIETC, the Government has met its burden to show it satisfied the delivery requirement. That does not end the inquiry, because the Court still must find the Government complied with the mailing requirement.
c. Pan America and Titanium.
In order to show an agency relationship between Pan America and Titanium, the Government relies primarily on evidence that shows when employees of Titanium were detained in the United States, in connection with this investigation, Pan-gang Group purportedly directed Pan America to assist these employees and to advance legal fees on their behalf. (See Patillo Deck, ¶¶ 7, 9, Exs. N, W.) However, unlike in Bauman, there are no facts to show that Titanium could not have afforded to carry on its business without Pan America’s presence in the United States. Pan America’s assistance may have been useful to Titanium. However, “[t]he fact that [a] subsidiary performs a function that” a related entity “finds useful, ... is insufficient to establish agency if’ that entity “could carry on its core business in the absence of that subsidiary’s work; for agency to exist, the subsidiary’s activity must be integral to the parent’s business.” Hickory Travel,
The Court finds the Government has not shown that Pan America is Titanium’s general agent. Accordingly, as to Titanium, the Government has not established that it complied with the delivery requirement. However, even if the Government had shown that Pan America is Titanium’s general agent, the Court still would grant the motion to quash service on Titanium for the reasons discussed in the remainder of this Order.
d. Pan America and PGSVTC.
In' order to support its argument that Pan America acts as a general agent for PGSVTC, the Government contends that PGSVTC sets the salaries for Pan America’s managerial employees. (See Patillo Deck, Ex. H.)
The Court finds the Government has not shown that Pan America is PGSVTC’s general agent. Accordingly, as to PGSVTC, the Government has not established that it complied with the delivery requirement. However, even if the Government had shown that Pan America is PTSVTC’s general agent, the Court still would grant the motion to quash service on PGSVTC for the reasons discussed in the remainder of this Order.
2. The Mailing Requirement.
To satisfy the mailing requirement, the Government must show it mailed the summons “to the organization’s last known address within the district or to its principal place of business elsewhere in the United States.” Fed. R.Crim. Pro. 4(c)(3)(C). The Government argues it has complied with the mailing requirement by mailing a copy of each of the summons to Pan America, which, as noted, it contends qualifies as the principal place of business in the United States for each of the Pangang Defendants.
The Court begins with the plain language of Criminal Rule 4. Unlike the delivery requirement, the mailing requirement does not state that a summons may be mailed to an officer, director or a general agent. It requires a summons to be mailed to the organization’s principal place of business in the United States.
The Government’s theory that mailing a summons to a general agent is sufficient service of process finds some support in the civil context. For example, in the Hickory Travel case, the court noted that “[o]ther federal courts addressing this issue have used jurisdictional analysis to determine whether service on a subsidiary counts as service upon its parent.”
The Government also urges the Court to read Criminal Rule 4 in conjunction with Criminal Rule 2, which provides that a court should interpret the criminal rules “to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay.” Criminal Rule 4(c)(3) is not silent on the issue of mailing, and the
The Government also argues that the purpose of Criminal Rule 4 has been satisfied, because each of the Pangang Defendants have notice of these proceedings, and it argues that “actual notice is a relevant consideration in determining that service on an agent in an otherwise proper manner was sufficient.” Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 424 n. 20 (9th Cir.1977). However, even in civil cases, actual notice without substantial compliance with the requirements of Civil Rule 4, is not sufficient to bring a defendant within the jurisdiction of the court. See, e.g., Benny v. Pipes,
Finally, the Government’s theory that mailing a summons to a general agent satisfies the mailing requirement is not persuasively supported by the criminal cases that have addressed this issue. In the Johnson Matthey case, the court granted the motion to quash on the basis that the government failed to comply with the mailing requirement when it mailed a copy of the summons to a domestic subsidiary of the foreign corporate defendant. The court construed the mailing requirement strictly and found that the foreign defendant had “not been shown to be present in the District of Utah and does not now have, nor has it ever had, an address in the District, or a place of business within the United States.” Id.,
In contrast, in the Chitron Electronics and the Public Warehousing cases, the courts found that the government complied with the mailing requirement on the basis that the domestic subsidiaries, which also were defendants, were the alter-egos of the foreign defendants. Thus, by sending a copy of the summons by mail to the domestic subsidiaries, the government was, in effect, sending a copy of the summons to the foreign corporate defendants, i.e. the organization to be served. Public Warehousing,
3. The Government Has Not Shown that Pan America is the Alter-Ego of PIETC.
In the Ninth Circuit, the alter-ego test is met when “(1) that there is such a unity of interest and ownership that the separate personalities of the two entities no longer exist and (2) that failure to disregard their separate identities would result in injustice. The first prong' of this test has alternately been stated as requiring a showing that the parent controls the subsidiary to such a degree as to render the latter the mere instrumentality of the former.” Bauman,
a. The Pangang Defendants are not estopped from arguing that Pan America is not their alter-ego.
As a preliminary matter, the Court addresses the Government’s argument that the Pangang Defendants should be equitably estopped from arguing that Pan America is not their alter-ego. Equitable estoppel operates as a shield “ ‘by which a person may be precluded by his act or conduct, or silence when it his duty to speak, from asserting a right which he otherwise would have had.’ ” Jablon v. United States,
The “true fact” at issue is whether Pan America is the alter-ego of each of the Pangang Defendants. In order to establish general agency and an alter-ego relationship, the Government must establish that each of the Pangang Defendants exer
The Court finds that the Government has not shown that the Pangang Defendants should be estopped from arguing that Pan America is not their alter-ego.
b. Unity of interest.
In order to determine whether there is a sufficient unity of interest, the Court may consider such factors as whether the subsidiary is inadequately capitalized and whether the “parent dictates every facet of the subsidiary’s business— from broad policy—to routine matters of day-to-day operation.” Unocal,
In order to show the requisite unity of interest, the Government again relies on the evidence it relied on to support its argument that Pan America is the general agent for PIETC. In addition, Pan America’s Board of Directors consists of Mr. Wang and one representative each from Pangang Group and PIETC. (Wang Decl. ¶ 10.) However, that fact alone is not sufficient to establish the requisite control to establish an alter-ego relationship. See, e.g., United States v. Bestfoods,
Pan America does keep separate books and records, although Pangang Group has the right to audit those books. (Wang Decl., ¶ 13; Patillo Decl., Ex. T.) “A parent corporation may be directly involved in financing and macro-management of its subsidiaries, without exposing itself to a charge that each subsidiary is merely its alter ego.” Unocal,
The Court finds that the Government has not shown the requisite unity of interest to establish an alter-ego relationship between Pan America and PIETC.
c. Fraud or injustice.
Even if the Government had established the requisite unity of interest, the Court concludes it has not shown the requisite fraud or injustice. The Government argues that “failing to pierce the corporate veil would result in an injustice,” because it would permit PIETC from answering the charges in this case. (Opp. Br. at 25:12-24.) . However, the Government has not persuasively shown that PIETC structured Pan America in such a way that it was designed as to avoid subjecting it to liability within the United States. That is, the Government has not shown that it is PIETC’s actions, rather than the terms of Criminal Rule 4, that would prevent PIETC from answering the charges. Cf. Alfred L. Wolff,
There is some support for the Government’s argument in the Public Warehousing case, but that court’s finding was premised in large part on the fact that the foreign defendants and the domestic subsidiary held themselves out as one company. Under Ninth Circuit law, such a finding would help to establish the first prong of the alter-ego test. The Public Warehousing court did not, however, expressly consider whether failing to pierce the corporate veil would work an injustice, which is required under Bauman. See Public Warehousing,
When the Court considers the evidence in its entirety, although that evidence .is sufficient to show that Pan America acted PIETC’s general agent, the Court finds the facts in this case more akin to those in Kramer Motors, and Alfred L. Wolff, than Chitron Electronics or Public Warehousing. Accordingly, the Court finds that the Government has hot shown that Pan America is PIETC’s alter-ego. Therefore, it has failed to show that it mailed a copy of the summons to PIETC.
The same would be true for Pangang Group, Titanium and PGSVTC. The Government relies on the same evidence it used to argue that Pan America was these entities’ general agent to argue that Pan America is their alter-ego. Although there is evidence that Chairman Fan signed letters describing himself as “Chairman” on Pan America’s letterhead, without more, the Court finds that evidence insufficient to establish a complete disregard of corporate formalities. Moreover, the Court the Government’s argument regarding “fraud
C. Alternative Means of Service.
The Government acknowledges that the United States and the PRC have entered into an Mutual Legal Assistance Agreement (“MLAA”) regarding assistance in criminal cases. The Government, however, argues that the MLAA is irrelevant for two reasons. Although the Government argues that the there is no private right to enforce the MLAA, see Chitron Electronics,
The Government also notes that the terms of the MLAA provide that “the Requested Party shall not be obligated to effect service of a document which requires a person to appear as the accused.” MLAA, Art. 8, para. 1. During oral argument, the Government conceded that this language provides the Requested Party with discretion to effect service. However, the Government represented that it is the judgment of the United States Department of Justice’s Office of International Affairs that the PRC would not agree to effect service on the Pangang Defendants. Thus, according to the Government, it would be futile to attempt service by way of the MLAA.
Accepting that representation for purposes of this motion, it appears that the Government will take the position that it will be left without a means to effect service on the Pangang Defendants. The Pangang Defendants have not asked the Court to dismiss the Superseding Indictment, and the Court has only ruled that the summonses served on the Pangang Defendants should be quashed. The Government and the moving parties should address how they intend to proceed in a joint status report that is due on August 16, 2012.
CONCLUSION
For the foregoing reasons, the Court GRANTS the Pangang Defendants’ motion and HEREBY QUASHES service on each of these defendants.
IT IS SO ORDERED.
Notes
. Walter Liew is also a defendant in E.I. DuPont de Nemours & Co. v. USA Performance Technology, Inc., et al., No. 11-CV-1665-JSW (the "DuPont litigation”) and the Liews are charged with tampering with witnesses in that case. In the DuPont litigation, the plaintiff alleges that the defendants, including Walter Liew, misappropriated trade secret materials providing detailed specifications for the plaintiff’s chloride-route titanium dioxide pigment manufacturing process. The Pangang Defendants are alleged to be the intended beneficiaries of the trade secrets at issue in the Du Pont litigation.
. Pangang Group was formerly named Pangzhihua Iron and Steel (Group) Company. (See Declaration of Peter Axelrod (“Axelrod Deck”), Ex. Fat 000001.)
. The Court addresses the Pangang Defendants' objections to the Szamossegi Declaration in Section A, and it addresses additional evidentiary objections raised at the hearing as necessary in the analysis.
.Pan America is not named in the Superseding Indictment.
. The Court does not intend this ruling to preclude the Pangang Defendants from raising a pretrial challenge to the admissibility of this testimony.
. The Court did not locate any additional cases resolving the issue, although a motion to dismiss for lack of jurisdiction based on insufficient service currently is pending in the case of United States v. Kim Dotcom, No. 1:12-CR-3 (E.D.Va).
. It is undisputed that the Government has not served an officer of any of the Pangang Defendants. It also is undisputed that the Government has not served an agent that the Pangang Defendants have "appointed or legally authorized to receive service of process." (See Wang Deck, ¶ 17; Niespolo Deck, ¶ 2, Ex. 1.)
.To the extent the Government premised its motion on a theory that each of the four Pangang Defendants should be viewed as one, the Court finds that the Government has not met its burden to show that PGSVTC, Titanium, PIETC and Pangang Group have no independent legal existence from each other. Thus, the Court will not treat them as one entity for purposes of evaluating their relationship with Pan America.
. Mr. York is "an Immigration Officer with the Fraud Detection and National Security United with the Center Fraud Detection Oper
. The facts set forth in Mr. Garofalo's declaration conflict with Mr. Wang’s attestations that Pan America “leases real estate in its own name, makes its leasing decisions independently of Pangang Group and PIETC, and pays its rent from its own accounts.” (Compare Garofalo Deck, ¶ 5 with Wang Deck, ¶ 12.)
. At the hearing, the Pangang Defendants objected to this exhibit on the basis that it had not been authenticated and on the basis that there was no evidence that the salary plan had been implemented. Although Special Agent Patillo attests that the document was located during the search of Pan America’s offices during the execution of a search warrant, the Government has not put forth evidence to show it was implemented. (Patillo Deck, ¶ 4.c.) The Court overrules the objection. Assuming for the sake of argument the salary plan was implemented, the Court finds the evidence insufficient to establish an agency relationship. •
. It is undisputed that none of the Pangang Defendants have an address within this District.
. The Chitron court does not use the term "alter-ego” in its analysis. However, the court's reasoning is based on facts that support a finding that the domestic subsidiary had not maintained a separate corporate identity from its foreign parent. The court's finding that the domestic subsidiary was a "mere conduit” for the foreign parent also is in line with the Ninth Circuit's alternate phrasing of the first prong of the alter-ego
. New Jersey law, where Pan America is incorporated, is in accord. See, e.g., Department of Environmental Protection v. Ventron,