Case 1:22-cv-22706-RNS Document 77 Entered on FLSD Docket 12/05/2022 Page 1 of 3
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`Civil Action No. 22-22706-Civ-Scola
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`United States District Court
`for the
`Southern District of Florida
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`Bell Northern Research, LLC,
`Plaintiff,
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`v.
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`HMD America, Inc., and others,
`Defendants.
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`Order of Partial Dismissal
`The Plaintiff, Bell Northern Research, LLC (“Bell Northern”), failed to timely
`serve Defendant Huaqin Co., Ltd. (“Huaqin”), in this case. The Plaintiff filed its
`complaint on August 25, 2022, and was responsible for serving the Defendant(s)
`with a summons and complaint by November 23, 2022. Fed. R. Civ. P. 4(c)(1);
`Fed. R. Civ. P. 4(m). Previously, the Court notified the Plaintiff, in keeping with
`Rule 4(m), that the Court would dismiss this case without prejudice unless the
`Plaintiff established that it served the Defendant timely or that good cause existed
`for its failure to timely serve the Defendant. (Not. of Upcoming Deadline to Serve,
`ECF No. 58.) Bell Northern did neither.
`Instead, Bell Northern filed a motion for leave to affect alternate service on
`Defendant Huaqin on November 21, 2022—nearly the eve of the deadline to affect
`service. (Corr. Mot., ECF No. 73.) Huaqin responded in opposition (ECF No. 74),
`and Bell Northern replied. (ECF No. 76.) Crucially, Bell Northern did not request
`an extension of time with which to serve Huaqin in its motion—instead, it only
`asked the Court to grant leave to effect service by email. (See generally Corr. Mot.)
`Because Bell Northern ignored the deadline and failed to complete service of
`process or ask the Court for an extension of time to serve based on good cause
`within the deadline, the Court dismisses Bell Northern’s claims against Huaqin,
`albeit without prejudice.
`Additionally, the Court has also “consider[ed] whether any other
`circumstances warrant an extension of time based on the facts of the case.”
`Lepone-Dempsey v. Carroll Cty. Comm’rs, 476 F.3d 1277, 1282 (11th Cir. 2007).
`The Court does not discern any such factor nor does the Plaintiff offer one. In
`fact, the support that Bell Northern offers in its motion for its request to affect
`service by email demonstrates that there is no reason why the Court should grant
`such an extension. (Mot. at 1-2.) The Plaintiff’s own timeline establishes that the
`Plaintiff dithered for months in back-and-forth negotiations with Huaqin’s
`attorneys, all while never even attempting to effect service under the Hague
`Service Convention on Defendant Huaqin (a Chinese corporation), as required.
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`Case 1:22-cv-22706-RNS Document 77 Entered on FLSD Docket 12/05/2022 Page 2 of 3
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`Then, after months of discussions with Huaqin’s counsel, and with knowledge of
`Huaqin’s physical address in China, Bell Northern rushed to Court at the nearly
`literal eleventh hour to request leave to effect service by email. (Id.) Predictably,
`Huaqin opposed this last-ditch effort. (Resp. at 10.) Based on the record in this
`case, the Court therefore declines to exercise its discretion to afford the Plaintiff
`an extension of time to serve the Defendant, or to authorize alternate service of
`process under the Hague Convention
`The Court observes that two additional factors support its decision to
`dismiss the claims against Huaqin. First, although Huaqin was certainly aware of
`the proceedings, service of process is still a requirement—without proof of service
`of process (or waiver thereof), the Court lacks jurisdiction over a party. De Gazelle
`Grp., Inc. v. Tamaz Trading Est., 817 F.3d 747, 750 (11th Cir. 2016) (holding that
`“notice does not confer personal jurisdiction on a defendant when it has not been
`served in accordance with Rule 4.”).
`Second, although Bell Northern references the Court’s prior order in this
`case authorizing service by email on Defendant Shenzhen Chino-E
`Communication Co. Ltd. (“Chino-E”), Bell Northern misses the crucial distinction:
`here, Bell Northern knows Huaqin’s physical address, while there, Bell Northern
`had no working physical address for Chino-E. (Order Auth. Alt. Service, ECF No.
`58.) The Hague Convention does not prohibit service by email when the
`defendant’s physical address is unknown. See Mycoskie, LLC v. 1688best, No. 18-
`cv-60925, 2018 WL 4775643, at *1 (S.D. Fla. July 2, 2018) (Moore, J.). Service of
`process by email is generally acceptable where a defendant’s physical address is
`completely unknown or where the plaintiff is dealing with “an international e-
`business scofflaw, playing hide-and-seek with the federal court.” Rio Props. v. Rio
`Int’l Interlink, 284 F.3d 1007, 1018 (9th Cir. 2002). Neither of those situations
`applies here. Instead, the Court finds that Bell Northern has not been diligent in
`seeking to either attempt proper service under the Hague Convention or seeking
`relief authorizing alternate service. Bell Northern’s inability to complete service
`within the deadline established by the rules is of Bell Northern’s own making.
`Consequently, because the Plaintiff has not established good cause for its
`failure to serve, has failed to request an extension of time or provide good cause
`supporting such an extension, and has unnecessarily delayed in attempting to
`affect service of process under the Hague Convention or timely request alternate
`service, the Court dismisses this action without prejudice against Defendant
`Huaqin Co., Ltd. The Plaintiff’s corrected motion for leave to effect alternate
`service (ECF No. 73) and the two prior-filed versions of the same motion (ECF
`Nos. 70, 71) are denied as moot. This case will remain open because the
`Plaintiff continues to assert claims against the other Defendants.
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`Case 1:22-cv-22706-RNS Document 77 Entered on FLSD Docket 12/05/2022 Page 3 of 3
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`Done and ordered in Miami, Florida, on December 2, 2022.
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`________________________________
`Robert N. Scola, Jr.
`United States District Judge
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