The case of the day is Patel v. Pal USA, Inc. (D. Nev. 2024). Patel sued Pal USA and its parent, Paltronics Australasia, Pty Ltd., for trademark infringement. Patel served the summons and complaint on Pal USA by mailing them to its registered office. Pal USA’s president and registered agent for service of process, Cooper, was also Paltronics Australasia’s CEO. So when Paltronics Australasia moved to dismiss for insufficient service of process, Patel argued that the service on Pal USA was essentially service on Cooper, which was service on Paltronics Australasia (because you can serve a corporation by serving its officer).

It shouldn’t be surprising that the court rejected the argument. Patel didn’t really serve Cooper but rather served Pal USA by mail. The case might have been closer it Patel had served Pal USA by handing Cooper the documents, but even then, handing the document to an officer in the United States is not one of the methods authorized by FRCP 4(h)(2) and 4(f).¹I say the case might be closer because I wonder if there is an argument that the foreign corporation in this situation is served in the United States, and that FRCP 4(h)(1) applies rather than FRCP 4(h)(2). If that is so, then service on the officer is good service.

Patel pointed to Volkwagenwerk AG v. Schlunk and argued that the Supreme Court had approved service on a foreign corporation by service on its US subsidiary. But that’s a misreading of the case, as the judge recognized. The point of Schlunk is not that service on a US subsidiary always works. It’s that if, under state law, service on the subsidiary is sufficient to serve the parent, then the Convention, which is exclusive but non-mandatory (in the HCCH’s preferred lingo) does not preempt state law. Schlunk,remember, reviewed the decision of an Illinois appellate court, not of a federal court. So FRCP 4 didn’t even come into play in the case.

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  I say the case might be closer because I wonder if there is an argument that the foreign corporation in this situation is served in the United States, and that FRCP 4(h)(1) applies rather than FRCP 4(h)(2). If that is so, then service on the officer is good service.