Spin Master LTD. v. AGANV

Background

Spin Master LTD. and Spin Master Toys UK Limited asked the court for a temporary restraining order. To evaluate that request, the court needed more information about whether the plaintiffs could serve defendants located in the People’s Republic of China by electronic means.

The plaintiffs relied on Federal Rule of Civil Procedure 4(f)(2)(A), which allows service on an individual in a foreign country by a method reasonably calculated to provide notice when that method is prescribed by the foreign country’s law for service in its courts. The plaintiffs argued that Article 87 of China’s Civil Procedure Law permits service by fax, email, or another method through which receipt can be acknowledged.

Court’s concerns

The court observed that Article 87’s language appears to require the consent of the person being served before electronic service. The court also discussed Article 277, which states that a foreign agency or individual may not serve documents within China without the consent of Chinese authorities. The plaintiffs had not explained why Article 87 permits electronic service on a nonconsenting party, had not provided factual support that the defendants consented, and had not addressed Article 277.

Order

The court directed the plaintiffs, if they wished to continue pursuing the temporary restraining order, to submit a brief explaining: (1) how Article 87 permits electronic service on nonconsenting parties, and (2) why Article 277 does not prohibit electronic service by a foreign individual. Alternatively, the plaintiffs could submit facts showing that the defendants had consented to electronic service. The brief could not exceed five pages without permission, excluding supporting facts, and was due February 4, 2022. The court also limited the brief to Rule 4(f)(2)(A) and instructed the plaintiffs not to discuss other methods of service under Rule 4(f). Judge Gregory H. Woods did not rule on the temporary restraining order or finally resolve whether electronic service was permitted.