Case of the Day: Drew Technologies v. Robert Bosch LLC

I have a very interesting case for you today, which nearly came in under the radar. The case of the day is Drew Technologies, Inc. v. Robert Bosch, LLC (E.D. Mich. 2013). The claim was for patent infringement. The plaintiff sought leave to serve Robert Bosch GmbH and Bosch Engineering GmbH under FRCP 4(f)(3) by service on related US parties or on Bosch’s US lawyer. The judge granted the motion, and Bosch LLC moved for reconsideration.

The judge, in an unusual decision, concluded that FRCP 4(f)(3) never authorizes service on a foreign defendant by service on a person or entity in the United States. He noted that Rule 4(f), on its face, applies only to service “at a place not within any judicial district of the United States,” and he concluded that the plain language of the Rule forbids service by delivery to a person or entity in the United States.

There are, of course, many precedents to the contrary, including cases where the courts have permitted service on a foreign defendant by service on its US lawyer and cases where the courts have permitted service on a foreign defendant by service on a US entity affiliated with the foreign defendant. Readers may want to look at my archive of FRCP 4(f)(3) cases for examples. But the judge has a point about the language of the rule, so I think it’s important to address the language of the rule head-on.

I think it is possible to square the precedents with the language of the rule as follows. When I serve a defendant in Germany by delivering the documents to his US lawyer, I am serving the defendant in Germany, not the US lawyer. Rule 4(f) is limited to cases of service outside of the United States, not delivery of documents outside of the United States. So if delivery of documents within the United States effects service on a defendant abroad, the language of the rule is satisfied. It is obviously preferable, in my view, to read the rule this way, if for no other reason than it is consistent with a large number of precedents and judges should strive to rule in harmony with earlier precedents. But I do want to congratulate Judge Terrence G. Berg for a clear opinion that reads the rule with fresh eyes and for the courage to come to a conclusion he thought right despite the precedents.

7 responses to “Case of the Day: Drew Technologies v. Robert Bosch LLC”

  1. […] pursuant to FRCP 4(f)(3). Beijing-Matsushita made the same argument that the defendant made in Drew Technologies v. Robert Bosch LLC (E.D. Mich. 2013): because FRCP 4(f)(3) permits alternate methods of service “at a place not within any […]

  2. […] US lawyer should never be permissible under FRCP 4(f)(3). I noted this issue in my post on Drew Technologies v. Bosch. I think this is a fair reading of the rule, though not a correct one, if only because it is […]

  3. […] process on the Kuwaiti defendants’ US lawyer is conventionally proper, unless you worry about cases like Drew Technologies v. Robert Bosch, which have thrown some cold water on the idea of serving process on a foreign defendant via service […]

  4. […] unsurprisingly, the court did not consider the textual issue we’ve discussed before: whether FRCP 4(f)(3) can ever permit service on a foreign defendant’s US counsel, given that […]

  5. […] a line of cases he’s explored over the years.  As Ted points out in the comments below, only one case, out of E.D. Mich., has gotten it right, but he squares the circle for the others quite nicely in his thoughts on the […]

  6. […] Hague Service Convention. He could simply have authorized service on the US lawyer. There are some doubts about whether this procedure works (because FRCP 4(f) applies only when service is to be made […]

  7. […] Bill notes that substituted service is an example of the ways in which state law is relevant to transnational litigation. State long-arm statutes are another example. But let me raise a procedural issue I’ve raised before,1 […]

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