The case of the day is International Designs Corp. v. Qingdao Seaforest Hair Products Co. (S.D. Fla. 2018). It’s an odd case. International Designs manufactured hair extensions. The hair extensions were patented by Hairtalk GmbH, which had licensed the patent to International Designs. International Designs and Hairtalk sued Qingdao, alleging that it was selling infringing products.
The plaintiffs moved for leave to serve process by alternate means, namely by email (apparently to the company in China, not to its US lawyers) and by “international courier with confirmed delivery.” Qingado then moved to dismiss for insufficient service of process.
Now, I think that Qingdao’s motion had merit. As long-time readers know, my view is that in Hague Convention countries like China, which object to service of process by postal channels, neither service by email nor postal service is permissible. And FRCP 4(f)(3) does not permit the courts to authorize service by a method that the Convention forbids.
But this wasn’t the approach Qingdao or the judge took at all. Instead, the issue was whether the court should have required the plaintiffs to try to effect service via the Hague Service Convention first. The judge found this persuasive. I don’t really understand this. It would be reasonable to deny leave to serve process by alternate means in the first instance on these grounds. But once the court granted leave, and the plaintiffs served process, then it would seem to me to be error to grant a motion to quash the service (if you thought, as the judge apparently did, that the methods of service used were permissible). The judge did not address the frequently very long delays in obtaining service via the Chinese Central Authority, which would weigh heavily against Qingado’s argument in my view. The judge did raise a good point about the ultimate enforceability of the judgment, but it seems to me that that’s really a matter for the plaintiff to worry about. In any case, in a patent case, frequently the plaintiff is not interested in enforcing a money judgment abroad, but rather in equitable relief, rendering this concern perhaps less important than it might be in other cases.