Friday, March 31, 2017

Defendant's and Counsel's Lack of Cooperation Justify Service on Foreign Entity by Alternate Means​

The court granted plaintiff's motion to serve its declaratory relief complaint by alternate means on a Japanese defendant following defendant and its counsel's lack of cooperation. "[Defendant's] contention that it is 'simply' standing on its 'right' to service under the Hague Convention is ill-taken. . . . [Counsel's email exchange] shows that [defense] counsel declined to accept service in an apparent fit of pique, and the record of events after that indicates that [defendant] has been unduly difficult to serve in a manner reflecting the uncooperative spirit manifested in [defendant's lead attorney's] words. . . . In our circuit, Rule 4(f)(3) allows for service 'by other means' so long as it is directed by the court and is not prohibited by international agreement. There is no hierarchy of procedures, as [defendant] suggests, that requires [plaintiff] to attempt service through the Hague Convention or other means before seeking an order under Rule 4(f)(3). . . . [Defendant] has been uncooperative at every turn in responding to [plaintiff's] attempts to serve the complaint. It has not shown that service under Rule 4(f)(3) would violate an international agreement, and the Hague Convention is certainly no bar. Consequently, [plaintiff's] motion for an order of service under Rule 4(f)(3) is granted. . . . In situations like this, service on a foreign corporation’s counsel in the United States is an effective and reasonable method, and is not prohibited by the Hague Convention."

Xilinx, Inc. v. Godo Kaisha IP Bridge 1, 3-17-cv-00509 (CAND March 29, 2017, Order) (Donato, USDJ)

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