Case of the Day: WSOU Investments v. TP-Link Technologies

The case of the day is WSOU Investments LLC v. TP-Link Technologies Co. (W.D. Tex. 2021). WSOU sued TP-Link, a Chinese company whose offices are in Shenzhen, for patent infringement. It sought leave under FRCP 4(f)(3) to serve process by email to TP-Link’s former US counsel and by certified mail to TP-Link’s US subsidiary. The court granted the motion, and TP-Link moved to dismiss for insufficient service of process.

The court correctly held that the Convention was not implicated, because the method of service it had authorized did not require the transmission of documents abroad. But TP-Link raised another argument, which I’ve covered here before. FRCP 4(f)(3) is part of Rule 4(f), which applies when service “at a place not within any judicial district of the United States.” If you say that service by email on the US attorney is okay because it does not require transmission of the document abroad, how can you also say that the service can be authorized by FRCP 4(f)(3), which applies only to service “at a place not within any judicial district of the United States?”

It’s a puzzle. One answer is precedent: there are a lot of cases allowing service on a foreign defendant by serving the US counsel. That’s a fair answer, though not very satisfying. It’s the answer the court gave in today’s case. Another answer is to say that you can serve process abroad even if you don’t transmit a document abroad. This requires some fancy footwork: maybe you say that service of process takes place abroad if it has the effect of subjecting the foreign defendant to jurisdiction, even though you don’t transmit a document abroad for service (the language of Article 1 of the Convention) unless you actually send the document abroad. But the first part of this seems a little circular. I don’t know if there is another answer to the riddle.

3 responses to “Case of the Day: WSOU Investments v. TP-Link Technologies”

  1. kotodama

    I’m not sure whether I’ll have anything to say on this case yet, but OT, as you likely know, the Servotronics case was taken off argument and seems headed for dismissal, so I look forward to this blog’s coverage of that.

  2. kotodama

    Here’s a random thought. Instead of the text you quote (“at a place not within any judicial district of the United States”), if you just look at the heading of Rule 4(f), it says: “serving an individual in a foreign country.” Of course when Rule 4(h) is applied to that, as it would be here, you get: “serving a [corporation] in a foreign country.” TP-Link is a “corporation in a foreign country” and it was “served” (via US counsel), so in that sense the language of the heading is literally met.

    I guess what I’m trying to say is, maybe the rule focuses more on the location of the party itself and not the quasi-metaphysical “location” where service took place? Of course, as always this isn’t my area of expertise at all, and if the latter is correct, then I agree “fancy footwork” is required for it to make sense.

    I will just note in closing this is an Albright case, so it’s definitely no surprise he found a way to rule in favor of the patentee plaintiff.

    1. Ted Folkman

      Kotodama, thanks for this. I think that the law really does focus on where the service takes place, mainly because one of the key issues here is that deciding whether the service takes place in the United States or abroad is key to deciding whether The Hague Service Convention applies (see Article 1 of the Convention, which is keyed to transmission of documents abroad for service), and because it is against the law in many countries to serve process in their territory except through their judicial officers. But you are right to point to the troublesome issue of trying to locate a corporation in physical space, which is a problem not just in the service context but also in the context of personal jurisdiction and the context of diversity of citizenship.

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