Tag Archives: Vietnam

Case of the Day: DFSB Kollective v. Bing Yang

The case of the day is DFSB Kollective Co. v. Bing Yang (N.D. Cal. 2013). We reviewed a previous DFSB case in July 2012. As in the earlier case, the claim here was for copyright infringement. One of the defendants, Bin Yang, lived in Vietnam. The other, Indrawati Yang, lived in Indonesia. Neither country is a party to the Hague Service Convention.

The court granted leave under FRCP 4(f)(3) to serve both defendant with process via email. In the circumstances of the case email was reasonably calculated to reach the defendants; indeed, given how they did business it seemed the only way to reach them. The case is pretty unremarkable, and I note it really just to make one point. Because neither Vietnam nor Indonesia is a party to the Hague Service Convention, the court’s decision to permit service of process by email cannot be read as support for the view of the judge in the much-maligned (by me) Gurung v. Malhotra case. That is all.

Case of the Day: Cambria Co. v. Pental Granite & Marble, Inc.

The case of the day is Cambria Co. v. Pental Granite & Marble, Inc. (D. Minn. 2013). Cambria, a Minnesota company that designs, manufactures, and sells quartz surfacing products such as countertops, sued Vinaconex Advanced Compound Stone Joint Stock Co. for copyright infringement, unfair competition, and unjust enrichment. Vinaconex was a Vietnamese corporation that manufactured some of the products that Pental, the other defendant, sold.

Vietnam is not a party to the Hague Service Convention. According to the return of service, Cambria served the summons and complaint on Vinaconex by personal service performed by Sim Mala, a process server, on Duong Trung, a security guard for Vinaconex, in Hanoi. There was no signed receipt. Cambria moved for entry of a default judgment when Vinaconex failed to answer the complaint, and Pental moved to set the default aside. 1 The judge set aside the default.

Under FRCP 4(h)(2), Cambria was required to serve process on Vinaconex using any of the methods of service prescribed for service of process on an individual abroad, except personal service under FRCP 4(f)(2)(C)(i). So Cambria could have served process as prescribed by a Vietnamese court in response to a letter of request (FRCP 4(f)(2)(B)), or, if permitted by Vietnamese law, by using a form of mail that requires a return receipt (FRCP 4(f)(2)(C)(ii)), or by some other means that the court prescribed (FRCP 4(f)(3)). But instead, Cambria chose to attempt service of process “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction” (FRCP 4(f)(2)(A)). So the judge faced the unenviable task of deciding whether the service here comported with Vietnamese law.

Cambria, probably foolishly, did not submit an expert declaration. Pental did. Its expert, a Vietnamese lawyer, asserted that under Chapter X of Vietnamese law, service on a corporation requires a signed receipt. The judge found that Vietnamese law did require a signed receipt‐he could hardly do otherwise given the materials before him—and therefore held that the default was improper.

You may be thinking that Cambria acted foolishly; why didn’t it just serve process by mail under FRCP 4(f)(2)(C)(ii)? But Cambria could not have avoided the Vietnamese law issue so easily, since service by mail under that rule is permissible only if not forbidden by Vietnamese law. But Cambria had another option. It could have sought leave to serve process by alternate means. The most readily apparent means? Service on Pental. It would be tough for the defendants to deny that such service would be reasonably calculated to reach Vinaconex, as Pental and its US lawyers had stepped forward to defend Vinaconex in the case. But today’s case does illustrate the sometimes difficult choices faced by plaintiffs where the defendant is in a country that is not a party to the Convention and whose law may not be simple for an American lawyer to determine.

Notes:

  1. There was an issue about Pental’s standing that I will not address.

Case of the Day: Tracfone Wireless, Inc. v. Bitton

In October 2011, we considered TracFone Wireless v. Doe (S.D. Fla. 2011), a decision I called “one of those rare cases that is so wrong that I hope it does not get into the F. Supp.2d, so as to avoid misleading lawyers.” The October decision authorized service of a subpoena by mail in Canada for purposes of discovering the identity of the defendant, who was sued as a John Doe. Yikes! Read the prior post for an explanation of why that can’t possibly be right.

Today’s case of the day, Tracfone Wireless, Inc. v. Bitton (S.D. Fla. 2012), is a follow-on decision in the same case (with a different judge presiding). Unfortunately, the decision, while maybe not as wrongheaded as the first decision, is muddled and confused. If someone at West Publishing is reading this: do not put this decision in the F. Supp.2d or the F.R.D.

It appears that TracFone was successful in obtaining discovery in Canada regarding the identity of the defendants, which goes to show that even an erroneous decision can help in a litigation! TracFone returned to court with a motion regarding service of process on the two. One, Isaac Bitton, was a resident of Canada. The other, Trung True, was a resident of Vietnam. TracFone sought leave to serve Britton “via international mail to the Quebec Central Authority … pursuant to [Rule] 4(f)(1).” It sought leave to serve both defendants by Fedex sent by the clerk pursuant to Rule 4(f)(2)(C)(ii). It sought leave to serve both defendants by Fedex sent by TracFone itself pursuant to Rule 4(f)(3). And it sought leave to serve True by email pursuant to Rule 4(f)(3).

The judge really mangled the first request. A litigant doesn’t need leave of court to transmit papers to a foreign central authority (though there is a view that says that the clerk rather than the plaintiff’s lawyer should transmit the papers, and if you hold that view, if may be necessary to pay a visit to the clerk’s office or even to make a motion to get the letter issued properly). The judge correctly held that Article 10 of the Convention permitted service of process by mail, but this is a non sequitur, as transmission of the documents to the foreign central authority is not service and Article 10 does not come into play. Strange. Still, the judge did reach the right outcome, which is that of course the plaintiff may send the papers to the foreign central authority via Fedex.

The judge granted the motion for service by mail sent by the clerk. This decision seems correct to me as to Canada (but see the discussion here for another view by a Canadian lawyer), and though I disclaim any knowledge of Vietnamese law, the plaintiff submitted evidence that Vietnamese law does not prohibit service by mail.

But then, strangely, the court went on to approve service by Fedex sent by the plaintiff itself under Rule 4(f)(3). Why would you need both methods of service? Again, very strange.

Last, the court approved service by email on the Vietnamese defendant in a perfunctory discussion. I think this is probably a permissible result. Since Vietnam is not a party to the Hague Service Convention, nothing bars such service. But I reiterate my view that the Convention does not permit service by email.