Case of the Day: Samsung Electronic Co. v. Early Bird Savings

The case of the day is Samsung Electronic Co. v. Early Bird Savings (S.D. Cal. 2014). It raises an issue we haven’t seen in a while, namely, whether a temporary restraining order can be extended beyond the ordinarily permissible time to allow for service of process abroad.

The claim was for trademark infringement. Samsung obtained a temporary restraining order on January 7. FRCP 65(b)(2) provides:

Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk’s office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.

Thus the order ordinarily would have expired on January 21. But on that date, the judge found good cause to extend the order to January 28, i.e., seven days later, and set a hearing on a preliminary injunction for that date. (The rule makes it clear the judge could have extended the order to February 4, i.e., fourteen days after the original expiration date).

Samsung sought an additional extension. It noted that it had begun the process of service under the Hague Service Convention but that service might take months. It represented that its lawyers had spoken with and provided documents to the defendants’ US lawyer, but that the US lawyer had said she was not authorized to accept service of process.

The judge, citing the practical realities of service abroad, held that an additional extension of the TRO was justified. This decision is hard to square with the rule. In my post on the H-D Michigan case, I suggested that one answer is simply to hold the preliminary injunction hearing, as it may be (despite some authority to the contrary) that the courts have jurisdiction to enter preliminary injunctions even before service of process on the defendant. In today’s case, there is an even easier answer that might be available: serve process on the Chinese defendant’s US lawyer under FRCP 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.

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