TushBaby, Inc. v. Jinjang Kangbersi Trade Co, Ltd.
- Jesse Furman
- 1:24-cv-06150
- U.S. District Court · Southern District of New York
- 3
In TushBaby v. Jinjang Kangbersi, Judge Furman denied TushBaby’s request to serve CozyOne by email or U.S. counsel without first trying Hague Convention service.
TushBaby’s effort to serve CozyOne was affected. The court denied alternative service by email or through United States counsel at this time, while allowing TushBaby to renew the request under the conditions stated in the opinion.
What happened
TushBaby, Inc. sued several defendants, including Dalian Kaolite Business Information Co., Ltd., known as CozyOne, over alleged trade-dress infringement. TushBaby asked to serve CozyOne, which was apparently based in China, by email or through its United States lawyer.
The court ruled that the Hague Convention generally applies because CozyOne’s address had not been shown to be unknown. TushBaby had not demonstrated that it reasonably tried to find CozyOne’s physical address, so the court denied alternative service at this time.
The denial was without prejudice to TushBaby renewing the request after showing that the Hague Convention does not apply or trying and failing to serve CozyOne under that Convention. Judge Furman directed the Clerk of Court to terminate the motion.
The detailed version
- TushBaby, Inc. v. Jinjang Kangbersi Trade Co, Ltd. · No. 1:24-cv-06150
- Jesse Furman
- Jan. 31, 2025
Background
TushBaby, Inc. brought claims, including trade-dress infringement, against several defendants, including Dalian Kaolite Business Information Co., Ltd., referred to as CozyOne. TushBaby asked the court under Rule 4(f)(3) of the Federal Rules of Civil Procedure to authorize serving CozyOne by email or through CozyOne’s counsel in the United States. The opinion states that CozyOne was apparently based in China and had appeared through counsel to oppose TushBaby’s request for a preliminary injunction.
Service-law issue
The parties disputed whether the Hague Convention on service of judicial and extrajudicial documents applied to CozyOne. The court explained that the Convention generally governs service on entities in China, but does not apply when the address of the person to be served is not known. In this circuit, an address is treated as unknown when the plaintiff exercised reasonable diligence in trying to find a physical service address but was unsuccessful.
TushBaby argued that CozyOne’s address was unknown. But TushBaby offered only a general statement that the addresses CozyOne provided to Amazon might not be valid and that infringers may conceal their whereabouts. The court found that TushBaby had not shown reasonable diligence in trying to discover CozyOne’s address. It therefore concluded that TushBaby had not established that the Hague Convention did not apply.
Ruling
The court declined to authorize alternative service without a showing that TushBaby had attempted, and failed, to serve CozyOne under the Hague Convention. It denied TushBaby’s request for alternative service at that time. The denial was without prejudice to renewal if TushBaby could either establish that the Hague Convention did not apply or attempt and fail to serve CozyOne under the Convention. The Clerk of Court was directed to terminate the motion, ECF No. 95. Judge Jesse M. Furman also stated that the court would not rely on TushBaby’s delay argument because it was raised for the first time in reply and, in any event, the existing preliminary injunction meant TushBaby was not prejudiced by the delay.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.