The Kyjen Company v. Individuals

Background

The Kyjen Company, LLC asked for permission to serve the 80 remaining defendants by email and online publication. The plaintiff had originally sued 117 defendants and later voluntarily dismissed 37. The plaintiff said that many defendants were believed to be in China but that their physical addresses were unknown.

The court had previously ruled that alternative service by email and online publication was not allowed under the Hague Convention, an international agreement governing service of legal documents abroad, unless the plaintiff could show that the defendants’ addresses were unknown after reasonable diligence. The plaintiff renewed its request and described searches, address investigations, attempted postal deliveries, phone calls, and in-person visits.

Legal standard

Federal Rule of Civil Procedure 4(f) governs service on defendants outside the United States. Where defendants are believed to be in China, the Hague Convention generally controls and prohibits service by email and online publication. The court explained that the Hague Convention does not apply when the person’s address is not known and the plaintiff exercised reasonable diligence but could not find a physical address.

Ruling

Judge Jennifer H. Rearden granted in part and denied in part without prejudice the plaintiff’s application.

The court granted permission for electronic service as to 45 defendants. This group included two defendants whom the plaintiff represented were located in Kyrgyzstan and Thailand, neither of which the opinion identifies as a Hague Convention signatory. It also included 11 defendants operating on DHgate, a Chinese online marketplace, because DHgate had not provided their physical addresses despite the court’s discovery order. The remaining 32 defendants had addresses that were inaccurate or nonexistent, inaccessible or too remote, unreachable by postal delivery, or otherwise unverified after the plaintiff’s reported investigation.

The court denied alternative service without prejudice as to 35 defendants. For four defendants, the plaintiff’s papers described only successful phone contacts and did not show attempts using multiple other methods, even though physical addresses were listed. For the other 31 defendants, the papers did not appear to describe any effort to locate their physical addresses. The Hague Convention’s service requirements therefore controlled for these defendants at that time.

The plaintiff was permitted to file a supplemental submission by March 6, 2023, at 5:00 p.m., describing additional efforts for the 35 defendants. The court said it would reconsider electronic service based on that information. For defendants about whom the plaintiff did not intend to submit additional information, the plaintiff was directed to complete service without delay.