Court: District Court, S.D. Florida; January 10, 2012; Federal District Court
An order has been issued by Judge Ursula Ungaro directing the Clerk's office to serve process on Defendant Techno-park Co. Ltd. ("Technopark") following the Federal Rules of Civil Procedure (Fed. R. Civ. P.) 4(f)(1) and 4(f)(2)(C)(ii). Plaintiff TracFone Wireless, Inc. alleges that Technopark, a foreign corporation based in Hong Kong, is involved in the unauthorized trafficking of devices that unlock TracFone’s trademarked prepaid wireless phones. TracFone claims Technopark conducts business in the U.S. and Florida but lacks a registered agent for service of process in any state.
TracFone's request includes two main actions: (1) a request for the Clerk to initiate service under the Hague Service Convention by contacting the Hong Kong Central Authority, and (2) a request for the Clerk to dispatch the complaint, summons, and order directly to Technopark via international express mail. The Court confirms that Hong Kong is a party to the Hague Service Convention and agrees with prior rulings that the Convention's provisions must be followed for service abroad. TracFone's request for judicial assistance in this process is also supported by the Court.
Hong Kong’s Central Authority requires that requests for service of process be initiated by qualified judicial officers or officials, as indicated by the Hague Convention status page. In response to TracFone’s motion, the Court orders the Clerk to send the summons and complaint to Hong Kong’s Central Authority for service on Technopark. Additionally, TracFone seeks permission for the Clerk to also send the documents directly to Technopark via international mail and FedEx.
The Court must determine three key issues regarding service by mail under Article 10(a) of the Hague Convention:
1. Whether U.S. legal documents can be served by mail if the destination country does not object.
2. If this method is permissible in Hong Kong.
3. Whether FedEx qualifies as a permitted postal channel for service.
The Supreme Court has established that service abroad must comply with the Hague Service Convention. Recent district court opinions indicate that while service through a central authority is one method, judicial documents may also be sent directly by postal channels to foreign recipients, provided the destination country has not objected. The Court references multiple precedents affirming that Article 10(a) allows for mail service unless explicitly objected to by the receiving country. Furthermore, federal appellate courts have supported the interpretation that "send" in Article 10(a) encompasses service of process, with notable cases reinforcing this understanding.
The Seventh Circuit supports the position that service by mail is permissible under Article 10(a) of the Hague Service Convention, referencing Research Systems Corp. v. IPSOS Publicite. TracFone raised contrary authority, specifically Intelsat Corp. v. Multivision TV LLC, which conflicts with the U.S. Department of State's official stance. TracFone provided a significant document, the Kreczko Letter, in which the Department criticized the Eighth Circuit's ruling in Bankston v. Toyota Motor Corp. The Kreczko Letter argues that the Bankston decision misinterpreted the convention and asserts that service by mail would benefit U.S. plaintiffs. It highlights Japan's acceptance of service by mail, as expressed by a delegate during discussions on the Hague Convention. The Court emphasizes the importance of the State Department's views in treaty interpretation, leading to the conclusion that service by mail under Article 10(a) is valid unless the destination country objects. Regarding Hong Kong, which is a signatory to the Hague Service Convention and has no objections to Article 10(a), the Court confirms that U.S. legal documents can be served by mail there, consistent with past court decisions.
Service of judicial documents to Hong Kong is permissible via postal channels, including FedEx, in accordance with Article 10(a) of the Hague Service Convention and Federal Rule of Civil Procedure (Fed. R. Civ. P.) 4(f)(2)(C)(ii). The court acknowledges previous decisions—such as *Sunstrike* and *Silver Top Ltd.*—which support service by registered mail and other postal methods to Hong Kong defendants. TracFone requests the court to allow service by FedEx for efficiency and tracking purposes, reinforcing that this method has been recognized as compliant under the Hague Convention by various courts, including *R. Griggs Grp. Ltd.* and *Wong v. Partygaming Ltd.*
The court concludes that service via FedEx is a valid postal channel and directs the Clerk to send the summons and complaint to Technopark in Hong Kong using both FedEx and international express mail. Technopark must respond to the complaint within twenty-one days of receipt. Additionally, TracFone can use the FedEx proof of signature as valid evidence of service, in line with Fed. R. Civ. P. 4(l)(2)(B), which allows for service proof through signed receipts or other satisfactory evidence.
The Motion (D.E. 6) is granted, allowing the Clerk of the Court to serve Technopark Co. Ltd. in multiple ways. First, under Fed. R. Civ. P. 4(f)(1) and the Hague Service Convention, the Clerk will send two copies of key documents (TracFone’s complaint, summons, civil cover sheet, USM-94, summary, and service order) via international express mail to the Chief Secretary of Administration in Hong Kong for service at Technopark's address. Second, under Fed. R. Civ. P. 4(f)(2)(C)(ii), the Clerk will serve Technopark by sending the same documents via United States postal service international express mail, return receipt requested, to a specified address in Sheung Wan, Hong Kong. Third, under Fed. R. Civ. P. 4(f)(3), service will also be made via FedEx to the same address. TracFone may file proof of service as required under Fed. R. Civ. P. 4(l)(2)(B). Technopark's response to the complaint is due 21 days after receiving the summons and complaint. TracFone must provide prepaid international express mail and FedEx envelopes to facilitate this order. The Court acknowledges that the Hague Convention stipulates that service requests must come from qualified officials or competent persons, and TracFone is also submitting a request for service from its counsel. Additionally, TracFone acquired a copy of the Kreczko Letter through a Freedom of Information Act request to the U.S. Department of State.
