Fox Shiver LLC v. Individuals
Fox Shiver LLC v. Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A to the Complaint
- James Oetken
- 1:23-cv-01898
- U.S. District Court · Southern District of New York
- 5
Fox Shiver v. Schedule A Defendants: Judge Oetken denied email service in China and Turkey but granted it for three defendants with unknown addresses.
Fox Shiver LLC and the defendants covered by its email-service request, including defendants in China and Turkey and the three Chinese defendants whose physical addresses were found to be unknown.
What happened
In Fox Shiver LLC v. Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A to the Complaint, Fox Shiver asked to serve defendants by email after service attempts through Chinese and Turkish authorities had not succeeded.
The court denied email service for 56 defendants in China and two defendants in Turkey because the Hague Convention did not permit that method in those countries. But it found that the addresses of three Chinese defendants were unknown after reasonable efforts to locate them, making the Convention inapplicable to those defendants.
The court granted in part and denied in part Fox Shiver’s motion. Judge James Oetken directed Fox Shiver to serve the three defendants with unknown addresses electronically within 14 days.
The detailed version
- Fox Shiver LLC v. Individuals · No. 1:23-cv-01898
- James Oetken
- Jan. 22, 2024
Background
Fox Shiver LLC moved for permission to serve defendants by email. The request covered three groups: 56 defendants in China who had not been served by the Chinese Central Authority, two defendants in Turkey who had not been served by the Turkish Central Authority, and three defendants in China whose addresses were unknown.
Fox Shiver said it had submitted service requests for the Chinese defendants between June 15 and July 15, 2023, and that six months had passed without completed service for the defendants at issue. It said it delivered the required documents to the Turkish Central Authority on July 4, 2023, and that six months had passed without communication from that authority.
For the three Chinese defendants whose addresses were unknown, the Chinese Central Authority returned certificates stating that Henan Gwq Industry Co., Ltd. (#17) and Shop900235122 (#207) could not be located at their specified addresses, and that Shenzhen Olan Kongge Technology Co. Ltd. (#658) had moved. Fox Shiver represented that it had used reasonable diligence, including hiring a third-party investigation firm specializing in searches of Asian entities.
Court’s Analysis
Under Federal Rule of Civil Procedure 4(f)(3), a court may authorize another method of serving a defendant abroad when that method is not prohibited by an international agreement. The court explained that the Hague Convention allows alternative methods after a Central Authority has not acted within six months, but it does not allow a method that the Convention prohibits.
The court held that email service on defendants in China and Turkey was prohibited by the Hague Convention. It relied on authority stating that the Convention specifies permissible service methods and that China and Turkey had objected to service through postal channels. The court rejected the argument that a country must specifically object to email service, reasoning that email is not an authorized Convention method in the first place.
The court treated the three defendants with unknown addresses differently. It explained that the Hague Convention does not apply when the person to be served has no known address. Courts require reasonable diligence to identify a physical address, which involves more than simply looking at a defendant’s online storefront. The court concluded that Fox Shiver had exercised reasonable diligence and that the physical addresses of the three defendants were not known.
Disposition
The court’s order states that Fox Shiver’s motion to serve defendants by email was GRANTED in part and DENIED in part. The request was denied as to the defendants in China and Turkey whose service efforts had not succeeded through the relevant Central Authorities. The court granted permission for electronic service on Henan Gwg Industry Co., Ltd. (#17), Shop900235122 (#207), and Shenzhen Olan Kongge Technology Co. Ltd. (#658), and directed that service occur within 14 days.
The opinion earlier identifies the first of these defendants as “Henan Gwq Industry Co., Ltd.” (#17), while the final directive spells the name “Henan Gwg Industry Co., Ltd.” (#17).
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.