Fox Shiver LLC v. Individuals

Background

Fox Shiver LLC moved for reconsideration of the court’s temporary restraining order, specifically the part requiring service on defendants through the Hague Convention. Fox Shiver had initially asked to serve Chinese defendants by email. It argued that “notice” under Rule 65 of the Federal Rules of Civil Procedure could be distinguished from formal service and that requiring Hague Convention service would create a serious unfairness. As an alternative, Fox Shiver asked the court to extend the temporary restraining order for six months.

Court’s analysis

The court acknowledged that Hague Convention service can be difficult and time-consuming, especially because a party may have little ability to monitor a service request sent to a foreign ministry. But after reviewing Federal Rules of Civil Procedure 4(f) and 65 and the reasoning in Smart Study Co. v. Acuteye-US, the court concluded that Fox Shiver’s position was unsupported. The court noted that Smart Study had addressed objections to email service on Chinese defendants and had concluded that email service was not permitted under the Hague Convention, and therefore was not permitted under Rule 4(f), when the Convention applied.

The court stated that email service and online publication could be permissible if the Hague Convention did not apply because the defendant’s address was unknown. It explained that this required reasonable diligence—not merely looking at a defendant’s storefront—to identify a physical address and determine whether the address was connected to the defendant. The court gave examples of additional efforts, including investigating likely addresses, sending mail, conducting online research, and making in-person visits.

Ruling and effect

The court was “not inclined to reconsider” its earlier order and was also not inclined to extend the temporary restraining order for six months. The court directed Fox Shiver to provide a status update by June 15, 2023, describing its efforts to obtain the China-based defendants’ addresses and whether those efforts had succeeded. The court said it would reconsider the propriety of email and online-publication service if Fox Shiver could establish that it had used reasonable diligence to identify the defendants’ physical locations. The court’s order states: “Plaintiffs’ motion for reconsideration is DENIED,” and directed the clerk to close the motion.