Case of the Day: Vista Peak Ventures v. GiantPlus Technology
Posted on September 2, 2019
The case of the day is Vista Peak Ventures, LLC v. GiantPlus Technology Co., Ltd. (E.D. Tex. 2019). The claim against GiantPlus, a Taiwanese company, was for patent infringement. Vista Peak asked the clerk to send the summons and complaint by registered mail, return receipt requested, to GiantPlus in Taipei. So far so good. A security guard received and signed for the documents and then gave them to the General Administrator of the company, who sent a written acknowledgment of receipt but returned the package to the sender—the clerk—because it “was not directed to a specific individual or department.” GiantPlus then moved to dismiss for insufficient service of process.
Under FRCP 4(f)(2), service by mail is permissible as long as it is not “prohibited” by the law of the foreign country. GiantPlus argued that in Taiwan civil procedure, service of process must be done by the clerk of the Taiwanese court. But that is just to say that service by mail from abroad is not prescribed by Taiwanese law. The question, though, is whether the service was expressly prohibited. The judge found no prohibition in Taiwan’s law and therefore rejected the argument.
GiantPlus also argued that the return receipt hadn’t been “signed,” as FRCP 4(f)(2)(C)(ii) requires. The judge disposed of that argument, too, on the grounds that the stamp was sufficient to meet the requirement of a signature. This is necessarily correct, since in many businesses, even in the US, the practice is to put a stamp rather than a manual signature on a return receipt card.
Last and most nearly meritoriously, GiantPlus argued that the summons had to be served on a manager, not just on the security guard. The court rejected this argument. Rather than try to review the court’s reasoning, which I don’t think was really right on point, let me give my reasons for thinking the holding is correct. In the domestic context, it’s true that service on an “officer, a managing or general agent, or any other agent authorized by appointment or by law” is sufficient to serve process on a corporation. FRCP 4(h)(1)(B). Other methods may also work, because federal law incorporates state law here. See FRCP 4(h)(1)(A), which refers back to FRCP 4(e)(1). But the rule on service of corporations abroad is different. FRCP 4(h)(2) incorporates (most of) the methods of FRCP 4(f), which means that you serve process on a foreign corporation by use of the Hague Service Convention, as prescribed by a letter rogatory, as the US court directs, or by mail. Service on an officer, agent, etc. is not one of the methods, though it’s how service might end up being made no matter which of the available methods the plaintiff selects.
Now, in practice, I think it is best to address the mail to the president or another officer of the corporation, or to someone else sufficiently high-ranking that when the corporation says that the stamp of its mailroom on the return receipt is insufficient, the court will reject the argument out of hand.