Alternative service in The Hague for the foreign defendant


The United States Court of Appeals for the Federal Circuit dismissed a motion for subpoena mandamus, ordering the United States District Court for the Western District of Texas to dismiss several infringement actions for Insufficiency of Service and Lack of Personal Jurisdiction when the Plaintiff used alternative methods to service a proceeding on a foreign defendant instead of the more conventional Hague Convention. Although the Court expressed reservations about allowing the district court to allow alternative methods of service solely because of the slower and more expensive Hague Convention proceedings, it found the decision to be a matter of discretion. of the district court. In re: OnePlus Tech. (Shenzhen) Co., Ltd., Case n ° 21-165 (Cir. Fed. Sept. 10, 2021) (not preceded) (by curiame).

OnePlus is a Chinese consumer electronics manufacturing company. WSOU Investments d / b / a Brazos Licensing and Development is a non-practicing entity headquartered in Texas. Brazos has filed five patent infringement actions against OnePlus and alleged that OnePlus does not have an establishment or employees in the United States. Although the People’s Republic of China is a signatory to the Hague Convention, Brazos has decided not to attempt to serve OnePlus by invoking the Hague Convention due to the charges involved. Instead, Brazos asked the district court to grant permission under the Fed. R. from Civ. Pro. 4 (f) (3) to use other methods to effect service. Brazos has not shown that service under the Hague Convention was attempted and failed, would have been unlikely to succeed, or was otherwise impractical. The district court considered the Hague Convention process to be slow and expensive and allowed the petition. Brazos served the complaint and summons on attorneys who represented OnePlus in the past and on OnePlus’ authorized agent for service in California.

OnePlus made a special appearance to challenge the sufficiency of the service and the jurisdiction of the district court over OnePlus. The district court dismissed the challenge on the grounds that rule 4 (f) (3) gave it discretion to order service on a foreign defendant by means other than those prescribed by the Hague Convention, and that the service had the effect of granting the district court personal jurisdiction over OnePlus. OnePlus wanted mandamus.

Oneplus mandamus The petition called on the Federal Circuit to compel the district court to overturn its order authorizing service and to demand that Brazos carry out service in accordance with Hague Convention procedures. OnePlus argued that:

  • Brazos’ service was ineffective as it did not meet Texas state law.

  • Due to the inefficient service, the district court did not have personal jurisdiction over OnePlus.

  • This was an abuse of power on the part of the district court to allow alternative service without having demonstrated the need to waive the Hague Convention procedures.

OnePlus argued that the district court only had jurisdiction if OnePlus was subject to Texas jurisdiction under Texas Long Arm Act. Because valid service under Texas law required the transmission of documents overseas and triggered the Hague Convention (which Brazos did not use), OnePlus argued that there was no valid service and therefore the district court did not have personal jurisdiction over OnePlus. The Federal Circuit rejected this jurisdictional argument as being in conflict with its precedent. Restrictions on service under the long arm law of the forum State do not preclude substitute service on other grounds under Rule 4 (f) (3). OnePlus’ argument confused service of proceedings under Rule 4 (f) (3), which provides for service ordered by the court “by any means not prohibited by an international agreement” with service under of Rule 4 (e) (1), which does not require a court order and provides for service “under the law of the State”. The Court also rejected OnePlus’ argument that Rule 4 (f) only applies to service or notice of proceedings carried out abroad, rendering the district court order invalid. allowing notification to the United States. Rule 4 (f) (3) may be used to authorize alternative service performed in the United States.

The Federal Circuit also found that the district court had not abused its discretion by authorizing alternative service under rule 4 (f) (3). While expressing concern about the district court’s permission to use other means of service under Rule 4 (f) (3) on the sole basis that service under Hague Convention is heavier than more informal means of service on a foreign defendant, the Court refused to find an obvious abuse of discretion that would justify a writ mandamus. The Court noted that although Rule 4 (f) (3) is not intended to replace other rules of service where other means of service are more practical, neither is it a question of ‘a’ last resort ‘or type of’ extraordinary remedy ‘for a plaintiff seeking to serve proceedings on a foreign defendant. The district court had also not granted relief under Rule 4 (f) (3) in any case where more conventional means of service would be merely inconvenient and had not announced its intention to do so. . On this record, the Court found that the district court’s decision was properly within its broad discretion to determine whether relief should be granted under Rule 4 (f) (3).

© 2021 McDermott Will & EmeryRevue nationale de droit, volume XI, number 266


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