Case of the Day: Brown v. China Integrated Energy

The case of the day is Brown v. China Integrated Energy, Inc. (C.D. Cal. 2012). The case was a class action for securities fraud against China Integrated Energy and Xincheng Gao, Gaihong Li, and Junrong Guo, among others. The three were officers or directors of China Integrated Energy. The plaintiffs did not know their addresses for service. China Integrated Energy’s US lawyers apparently knew their addresses but apparently refused to provide them to the plaintiffs. The plaintiffs sought leave to use alternate forms of service under FRCP 4(f)(3), and in particular, for leave to serve the officers and directors by serving China Integrated Energy’s US lawyer or the company’s Delaware registered agent for service of process. The individuals did not oppose the motion, but China Integrated Energy did.

The judge granted the motion. China Integrated Energy incorrectly argued that the only methods of service were the methods permitted by the Hague Service Convention. The Convention only applies when, under the law of the forum, there is occasion to transmit a document for service abroad. The upshot of FRCP 4(f)(3) is that it permits the court to authorize service on a foreign defendant without transmitting the summons abroad. Thus the Convention simply does not apply. Moreover, although the judge didn’t note the point, the fact that the plaintiffs did not know the defendants’ addresses despite their apparent diligence also made the Convention irrelevant: under Article 1 the Convention does not apply when the defendant’s address is unknown.

The judge found that in the circumstances, the notice was reasonably calculated to reach the officers and directors, which is all the Due Process Clause requires, and she correctly noted that it is unnecessary to attempt other methods of service before requesting leave to make alternate service under Rule 4(f)(3).

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

Leave a Reply

Your email address will not be published. Required fields are marked *