
    LEXMARK INTERNATIONAL, INC. Plaintiff, v. INK TECHNOLOGIES PRINTER SUPPLIES, LLC, et al., Defendants.
    No. 1:10-cv-564.
    United States District Court, S.D. Ohio, Western Division.
    Sept. 11, 2013.
    
      P. Douglas Barr, Anthony J. Phelps, Steven B. Loy, Stoll Keenon Ogden PLLC, Lexington, KY, Audra Carol Eidem Heinze, Jason Shull, Matthew P. Becker, Timothy C. Meece, V. Bryan Medloek, Banner & Witcoff, Ltd., Chicago, IL, William J. Hunter, Jr., Stoll Keenon Ogden PLLC, Louisville, KY, for Plaintiff.
    Jon Hokanson, Thomas S. Kidde, Lewis Brisbois Bisgaard & Smith, LLP, Lena Nadine Bacan, Thomas Tak-Wah Chan, Fox Rothschild LLP, Los Angeles, CA, Glenn Dean Bellamy, Wood, Herron & Evans, LLP, James David Liles, Porter Wright Morris & Arthur LLP, Michael P. Foley, Rendigs, Fry, Kiely & Dennis, David Graham Kern, Roet-zel & Andress, LPA, Cincinnati, OH, Andre A. Gibson, Andre Gibson, Chartered, North
    
      Miami Beach, FL, Crystal L. Maluchnik, George H. Carr, Janik L.L.P, Cleveland, OH, Edward F. O’Connor, The Eclipse Group, LLP, Irvine, CA, for Defendants.
   OPINION AND ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court on Plaintiff Lexmark International, Inc.’s Renewed Motion and Memorandum in Support for Permission to Serve the Foreign Defendants Through Alternative Means Pursuant to Federal Rule of Civil Procedure 4(f)(3). (Doc. 377). In the motion, Plaintiff seeks permission to serve the following four Defendants by alternative means: (a) Eco Service China Ltd. located in China; (b) Shanghai Orink InfoTeeh International Co., Ltd. located in China; (c) Zhuhai Richeng Development Co., Ltd. located in China; and (d) Interseroh Product Cycle GmbH located in Germany. As those Foreign Defendants have not appeared in the matter, no response in opposition has been filed on their behalf.

I. BRIEF PROCEDURAL BACKGROUND

Plaintiff previously filed a motion pursuant to Federal Rule of Civil Procedure 4(f)(3) requesting authorization to serve certain defendants located outside the United States with the Summons and First Amended Complaint by email and/or international courier. The Court granted in part and denied in part the motion for alternative service. As is relevant to the Renewed Motion, the Court denied service via email on each of the four Defendants because it was not convinced that service via email was reasonably calculated to reach those defendants or that the circumstances of this ease warranted such alternative service. Plaintiff now renews its request to serve three Defendants in China and Germany via email, and to serve Zhuhai Richeng Development Company, Ltd. via email and, alternatively, via its U.S.-based agent, ECOI U.S. Supplies, Inc.

II. ANALYSIS

Federal Rule of Civil Procedure 4(h) governs international service of process on foreign businesses. Specifically, Rule 4(h)(2) authorizes service of process on a foreign business in the same “manner prescribed by Rule 4(f) for serving an individual, except personal delivery____” Fed.R.Civ.P. 4(h)(2).

Federal Rule of CM Procedure 4(f) provides three methods for service. Of relevance here is Rule 4(f)(3), which permits service by “other means not prohibited by international agreement, as the court orders.” Fed.R.Civ.P. 4(f)(3). As explained in the Court’s prior Opinion and Order, there are only two requirements for service under Rule 4(f)(3), which are (1) it must be directed by the court, and (2) it must not be prohibited by international agreement. See Popular Enters., LLC v. Webcom Media Grp., Inc., 225 F.R.D. 560, 561 (E.D.Tenn.2004). Rule 4(f)(3) is “neither a ‘last resort’ nor ‘extraordinary relief.’ It is merely one means among several which enables service of process on an international defendant.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir.2002). However, the chosen method must comport with constitutional notions of due process, namely that the service of process be “reasonably calculated, under all the circumstances, to apprize interested parties of the pendency of the action and afford them an opportunity to present their objections.” Studio A. Entm’t, Inc. v. Active Distribs., Inc., No. 1:06cv2496, 2008 WL 162785, at *4, 2008 U.S. Dist. LEXIS 5883, at *8 (N.D.Ohio Jan. 15, 2008). The Court also must determine that the facts and circumstances of the case warrant the exercise of its discretion to order alternative service. Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nig., 265 F.R.D. 106, 115 (S.D.N.Y.2010) (“ ‘The decision whether to allow alternative methods of serving process under Rule 4(f)(3) is committed to the sound discretion of the district court.’ ”) (quoting RSM Prod. Corp. v. Fridman, No. 06 Civ 11512, 2007 WL 1515068, 2007 U.S. Dist. LEXIS 37713 (S.D.N.Y. May 24, 2007)).

China and Germany are signatories to the Hague Convention. See Convention done at the Hague Nov. 15, 1965, art. 10(a), 20 U.S.T. 361, 658 U.N.T.S. 163, C.T.S. 1989/2. Various courts have agreed that service by email is not prohibited by the Hague Convention. See Williams-Sonoma Inc. v. Friend-finder, Inc., No. C 06-06572, 2007 U.S. Dist. LEXIS 31299, at *4-5 (N.D.Cal. Apr. 17, 2007); see also Facebook, Inc. v. Banana Ads, LLC, No. C-11-3619, 2012 WL 1038752, at *2, 2012 U.S. Dist. LEXIS 42160, at *6-7 (N.D.Cal. Mar. 27, 2012) (citing eases where court held that service by email did not violate the Hague Convention). Email service has been approved even where, as here, the country objects to Article 10 of the Hague Convention. See Fed. Trade Comm’n v. PCCare247, Inc., No. 12 Civ. 7189, 2013 WL 841037, at *3-4, 2013 U.S. Dist. LEXIS 31969, at *11 (S.D.N.Y. Mar. 7, 2013) (citing Gurung v. Malhotra, 279 F.R.D. 215, 219 (S.D.N.Y.2011); Philip Morris USA Inc. v. Veles Ltd., No. Civ. 2988(GBD), 2007 WL 725412, 2007 U.S. Dist. LEXIS 19780 (S.D.N.Y. Mar. 12, 2007)); see also Facebook, Inc., 2012 WL 1038752, at *2, 2012 U.S. Dist. LEXIS 42160, at *6-7 (citing cases where court held that service by email did not violate the Hague Convention). As such, a court may order service by email, where appropriate.

Likewise, courts have permitted service on defendants located in China via their U.S.based subsidiaries and counsel. In re Cathode Ray Tube (CRT Antitrust Litig.), MDL No. 1917, 2008 WL 4104341, at *1, 2008 U.S. Dist. LEXIS 111384, at *32-33 (N.D.Cal. Sept. 3, 2008) (citing Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988)); see also Drew Techs., Inc. v. Robert Bosch, L.L.C., No. 12-15622, 2013 WL 1775596, at *1-2, 2013 U.S. Dist. LEXIS 59173, at *4 (E.D.Mich. Apr. 25, 2013).

Plaintiffs renewed motion provides the Court with sufficient information from which the Court can determine that the requested alternative service by email and via a U.S.based agent is reasonably calculated to reach those Defendants. Eco Service China, Ltd. (China), Interseroh Product Cycle GmbH (Germany), Shanghai Orink InfoTeeh International Co., Ltd., and Zhuhai Rieheng Development Co., Ltd. are business entities with websites on which they provide email addresses where they may be contacted. Plaintiff also has demonstrated that it has verified that each of the email addresses at which it seeks to serve those Defendants is valid, and that communication has occurred with a representative of the respective Defendant at those email addresses.

As for alternative service on ECOI U.S. Supplies, Inc., Plaintiff has demonstrated that it is an agent and parent company of Zhuhai Rieheng Development Co., Ltd., that it has the same principal as Rieheng, that it shares a website with Rieheng, and that it has a U.S.-based agent for service of process in California. As such, the Court is persuaded that service of process on ECOI U.S. Supplies, Inc., the domestic agent of Zhuhai Rieheng Development Co., Ltd., comports with due process.

Plaintiff also has shown that the circumstances of the case warrant alternative service. This case has been pending for approximately three years, and the Court is well aware of the difficulties encountered by Plaintiff attempting to locate all of the Defendants in this matter. Plaintiff has demonstrated that service on the Chinese entities could be further delayed by more than four months if formal service pursuant to the Hague Convention is required. Plaintiff also has demonstrated that other business entities have evaded enforcement efforts by effectively disappearing such that any further delay may prejudice Plaintiffs ability to obtain relief.

Accordingly, the Court finds that this ease warrants the exercise of its discretion to order alternative service under Rule 4(f)(3) on the four Defendants that are the subject of Plaintiffs Renewed Motion.

III. CONCLUSION

For the foregoing reasons, Plaintiffs Renewed Motion (Doc. 377) is hereby GRANTED. It is ORDERED that Plaintiff is authorized to serve the following Defendants with the Summons and First Amended Complaint as set forth below:

IT IS SO ORDERED.  