The plaintiffs in two copyright infringement cases assigned to U.S. District Court Judge Gregory H. Woods in the Southern District of New York want to use email to serve summons on dozens of defendants located in the People’s Republic of China.
Woods was concerned about the validity of email service, which U.S. District Court Judge Joan B. Gottschall considered in Luxottica Group v. Partnerships & Unincorporated Associations identified on Schedule “A,” 391 F.Supp.3d 816 (N.D. Ill. 2019). The judge asked for help from a professor and director of Hong Yen Chang Center for Chinese Legal Studies at Columbia University Law School, for “disinterested legal advice regarding whether a foreign plaintiff may, under relevant Chinese law, properly serve via email a defendant located in the People’s Republic of China.”
A pre-internet treaty, the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“treaty”) was designed to simplify and standardize the serving process abroad. Each member nation of the Hague Convention is supposed to designate a central authority to receive service of process.
The Hague Convention pre-empts inconsistent methods of service wherever it applies. Volkswagenwerk v. Schlunk, 486 U.S. 694 (1988).
But under Article 19 of the treaty, it does not override “internal laws of its signatories that permits service from abroad via methods not otherwise allowed by the convention.” Watersplash, Inc. v. Menon, 137 S. Ct. 1504 (2017).
Trying to avoid getting stuck in Beijing bureaucracy, the plaintiffs in Judge Woods’s cases, Palace Skateboards and SmartStudy Co., the South Korean company that created the “Baby Shark” video, argued that People’s Republic of China law authorizes electronic service of summons.
Article 87 of the Chinese Civil Procedure Law permits electronic service of summons by consent. And the plaintiffs argued that the defendants consented when they accepted the terms of service for Alibaba and AliExpress.
Yet Article 277 of the Civil Procedure Law says: “No foreign authority or individual shall, without permission from the competent authorities of the People’s Republic of China serve process … within the territory of the People’s Republic of China.”
Based on Article 227, Judge Gottschall concluded that the plaintiffs in Luxottica Group, “failed to carry their burden to show that Article 19 of the Hague Service Convention applies.” And “because email would bypass the methods of service the Hague Convention authorizes, the Convention preempts it as inconsistent.” Judge Woods wrote a very long letter to the Columbia University professor requesting advice. With this matter pending, the court asked for amici help.
The court, unable to make a conclusive decision on jurisdiction, has asked for help from the outside and thus the case remains pending on this complex jurisdictional issue of a foreign defendant and service of summons.
Smart Study Co. v. Acuteye-US, No. 21CV2860.
Kreisman Law Offices has been handling federal and state civil litigation matters, commercial litigation, state and federal appeals and copyright infringement lawsuits for individuals, families and businesses for more than 45 years in and around Chicago, Cook County and its surrounding areas, including Bensenville, Franklin Park, Villa Park, Lombard, Glendale Heights, Wheaton, Oak Brook, Oak Park, Hickory Hills, Crestwood, Forest Park, Calumet City, Rosemont, Wilmette, Skokie, Morton Grove, Northbrook, Chicago (Jefferson Park, North Park, West Rogers Park, Logan Square, Old Irving Park, Uptown, Lakeview, Lincoln Park, Sheffield Neighbors, Bucktown, Ukrainian Village, Humboldt Park, Austin, Lower West Side, Armour Square, Bridgeport, Canaryville, Brighton Park, Archer Heights), Cicero, Libertyville, Stickney and Winnetka, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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