The case of the day is Samsung Electronic Co. v. Early Bird Savings (S.D. Cal. 2014). I wrote about an earlier decision in the case back in February. In today’s decision, Samsung asked the judge to deem service on the two Chinese defendants effected.
Samsung had hired a process server to make service. The process server proceeded to attempt service via the Chinese central authority under the Service Convention. The central authority returned certificates stating that the documents “had not been served” because the defendants “refused to accept the document.” The process server sent an inquiry to the central authority, which replied that its practice was not to leave the papers with a party who refused to accept them. The central authority regards its efforts as sufficient but states that it is for the “foreign judge to decide the effect of service.”
The judge correctly held that service had not been effected. When a central authority’s certificate states that service was effected in accordance with the local law, the certificate is prima facie proof of service, and maybe something more than prima facie proof. But when the certificate does not state that service was made in accordance with the local law, then it’s up to the plaintiff to show that service was made in accordance with the local law, and Samsung couldn’t do that here. You might even say that where a certificate says that service was not made, the certificate again is prima facie proof of what it says.
Now, I’m not condoning the Chinese central authority’s practice. The Convention allows a plaintiff to request voluntary delivery to the defendant, but in the absence of such a request, the foreign central authority should effect service whether or not the defendant wishes to accept service. This issue ought to be dealt with by the next meeting of the Special Commission or perhaps bilaterally.
So what practical advice could we give Samsung in this situation? Given that Samsung was seeking a TRO and preliminary injunctive relief, Samsung probably should have been seeking alternative means to make service, though given China’s Article 10(a) objections and my views on the impropriety of service by email under the Convention, there may not have been an easy route to alternative service.