Case of the Day: In Re Cathode Ray Tube Antitrust Litigation

The case of the day is In re Cathode Ray Tube Antitrust Litigation (N.D. Cal. 2014). We considered another decision in this multi-district litigation in February 2013.

In today’s case, Beijing-Matsushita Color CRT Co., one of the defendants, moved to dismiss on service of process grounds. The court had authorized service of process on Beijing-Matsushita’s US lawyer in Washington 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 judicial district of the United States,” and because the documents are actually delivered to someone in the United States, the rule does not apply. The judge rejected this argument, though for a reason I think is unsatisfactory. He reasoned that

court orders generally crafted under Rule 4(f)(3) require transmission of service papers to a foreign defendant via a domestic conduit like a law firm or agent—ultimately, the foreign individual is served and thereby provided notice outside a United States judicial district, in accordance with Rule 4’s plain language.

The problem with this view is that if the service is not complete until the documents are transmitted abroad, then it seems the Service Convention should apply, since the Convention always applies if there is occasion to transmit judicial documents abroad and the defendant’s address is known. So the defendant’s lawyer, on this view, should be required to transmit the papers abroad to his own client via a method permitted by the Convention. I haven’t seen this requirement in the cases. It seems to me that the better view, as I suggested in my post on the Drew Technologies case, is that service in the foreign country is complete upon delivery of the documents to the recipient in the United States.

Beijing-Matsushita also suggested that China’s opposition to the methods of service under Article 10 doomed the service, but the judge rejected that argument, too, on the grounds that the plaintiffs did not seek to mail the documents to China, but rather to Washington.

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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