Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 1 of 14 PageID #: 824
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`AGIS SOFTWARE DEVELOPMENT,
`LLC,
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`Plaintiff,
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`Case No. 2:17-cv-517-JRG
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`JURY TRIAL DEMANDED
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`§
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT, LLC’S
`MOTION FOR ALTERNATIVE SERVICE OF DEFENDANT
`ZTE CORPORATION PURSUANT TO FED. R. CIV. P. 4(f)(3)
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`v.
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`ZTE CORPORATION, ET AL.,
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`Defendants.
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 2 of 14 PageID #: 825
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`Plaintiff AGIS Software Development, LLC (“AGIS”) respectfully submits this Motion
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`for Alternative Service of Defendant ZTE Corporation (“ZTE Corp.”) pursuant to Fed. R. Civ. P.
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`4(f)(3). AGIS requests that this Court issue an order permitting it to serve ZTE Corp. with the
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`Summons and Complaint (Dkt. 1) and the First Amended Complaint (“Amended Complaint”)
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`(Dkt. 32) by e-mail to its U.S. counsel or, in the alternative, to serve ZTE Corp.’s U.S. wholly-
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`owned subsidiary, ZTE (USA), Inc. with the Summons and Complaint and Amended Complaint
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`in accordance with the Federal Rules of Civil Procedure.
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`I.
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`INTRODUCTION
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`In August 2017, AGIS began the process of serving China-based Defendant ZTE Corp.
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`with the Summons and initial Complaint through the Convention on the Service Abroad of
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`Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Convention”).
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`The process was expected to take three to six months. Today, more than nine months later,
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`AGIS has still not received a certificate of completed service from the Central Authority of
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`China, and has been informed that the earliest ZTE Corp. will be served is August. Accordingly,
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`in order to mitigate any further delay in the prosecution of this action, AGIS seeks an order from
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`the Court permitting it to serve ZTE Corp. through alternative means—namely, by e-mail to ZTE
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`Corp.’s U.S. counsel or, in the alternative, by serving its U.S. wholly-owned subsidiary, ZTE
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`(USA), Inc., which is a defendant in this action, in accordance with the Federal Rules of Civil
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`Procedure.
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`Federal Rule of Civil Procedure 4(f)(3) permits alternative service in these circumstances
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`because neither of AGIS’s proposed means of alternative service is prohibited by international
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`agreement, and both comport with due process. Moreover, long delays in service under the
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 3 of 14 PageID #: 826
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`Hague Convention, like the one experienced by AGIS, provide additional justification for a court
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`to order alternative service on a foreign defendant.
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`II.
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`BACKGROUND
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`A. Procedural History
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`On June 21, 2017, AGIS initiated the present action against ZTE Corp., and its subsidiary
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`ZTE (TX), Inc., alleging infringement of certain of AGIS’s patents. Dkt. 1 ¶¶ 7-10.
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`Immediately after commencing the action, AGIS began the process of serving ZTE Corp., a
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`Chinese company, through the Hague Convention, a process that was expected to take three to
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`six months. Exs. 1, 2 (correspondences with process server stating service on ZTE Corp.
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`through the Hague Convention would be complete in three to six months). Through its process
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`server, AGIS provided copies and translations of the Summons and Complaint to the Central
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`Authority of China, specifically the Bureau of International Judicial Assistance, Ministry of
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`Justice of the People’s Republic of China (“Central Authority”), for service on ZTE Corp. in
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`China. The Central Authority received the Summons and Complaint on August 24, 2017. Ex. 3.
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`The Central Authority, however, did not provide the papers to the local authorities to effectuate
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`the next step of service until December 4, 2017. Id. On February 19, 2018, AGIS’s process
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`server visited the Central Authority at AGIS’s request to obtain an in-person status update. Id.
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`The process server was informed by the Main Clerk of the Central Authority that the earliest
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`ZTE Corp. will be served is sometime in August. Id. But even this date is uncertain because the
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`Central Authority has a practice of purposefully delaying service of U.S. documents in an
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`attempt to prevent assets from leaving China. Id.
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`2
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 4 of 14 PageID #: 827
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`On October 17, 2017, AGIS amended the initial Complaint to, inter alia, add ZTE
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`(USA), Inc., another wholly-owned subsidiary of ZTE Corp., as a defendant and add allegations
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`of infringement as to another AGIS patent. Dkt. 32 ¶¶ 3, 16.
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`B. ZTE Corp.’s U.S. Counsel
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`Based on publicly available information, ZTE Corp. is currently represented by counsel
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`in the United States in connection with a civil litigation and a proceeding before the United
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`States Patent and Trademark Office’s (“USPTO”) Patent Trial and Appeal Board (“PTAB”).
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`McDermott Will & Emery LLP currently represents ZTE Corp. in Fundamental Innovation Sys.
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`Int’l, LLC v. ZTE Corp., et al., No. 3:17-cv-1827 (N.D. Tex. Feb. 13, 2017). Exs. 4-10 (notices
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`of attorney appearances by counsel at McDermott Will & Emery on behalf of ZTE Corp.). The
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`attorneys appearing on behalf of ZTE Corp. are located at McDermott Will & Emery’s Chicago,
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`Dallas, and Washington D.C. offices. Id. ZTE Corp. appointed Pillsbury Winthrop Shaw
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`Pittman LLP (“Pillsbury”) as lead and back-up counsel in connection with ZTE Corp.’s petition
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`for inter partes review of a patent owned by Hitachi Maxell, Ltd. IPR2018-00235. Ex. 11
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`(power of attorney appointing Pillsbury as counsel for ZTE Corp). These attorneys are located at
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`Pillsbury’s San Diego and Austin offices.1
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`In an attempt to avoid further delay of the prosecution of this action, and prior to filing
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`this Motion, AGIS sought a waiver from ZTE Corp. permitting informal service of the Summons
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`and Complaint and the Amended Complaint by electronically serving ZTE Corp.’s U.S. Counsel.
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`On April 21, 2018, counsel for AGIS reached out to ZTE Corp.’s U.S. Counsel asking if their
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`client, ZTE Corp., would authorize them to accept service of the Summons and Complaint and
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`the Amended Complaint via e-mail. Exs. 12, 13 (emails to each counsel re informal service).
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`Pillsbury refused to accept service. Ex. 13. Despite AGIS’s numerous emails to McDermott
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`1 McDermott Will & Emory and Pillsbury are collectively referred to herein as “ZTE Corp.’s U.S. Counsel.”
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 5 of 14 PageID #: 828
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`Will & Emery seeking a waiver of formal service, they never responded to AGIS’s request. Ex.
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`12.
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`C. ZTE Corp.’s Domestic Subsidiary
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`ZTE (USA), Inc. (referred to as “ZTE Corp.’s Domestic Subsidiary”), a defendant in the
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`instant action and a wholly-owned subsidiary of ZTE Corp., is located in the United States. ZTE
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`(USA), Inc. is a New Jersey corporation with a place of business located in Texas. Dkt. 38 at 4;
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`Dkt. 38-3 ¶¶ 4-5. Numerous employees of ZTE (USA), Inc. are also employees of ZTE Corp.,
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`including at least the following high-level executives: (1) Matthew Bell who currently serves as
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`Chief Export Compliance Officer and Legal Counsel of ZTE Corp. and Chief Compliance
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`Officer and Legal Counsel for ZTE (USA), Inc. (Exs. 14, 15), and (2) Lixin Cheng who currently
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`serves as Senior Vice President of ZTE Corp. and Chairman and CEO of ZTE (USA), Inc. (Ex.
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`16).
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`III. LEGAL STANDARD
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`Service on an entity outside of the United States is governed by Federal Rule of Civil
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`Procedure 4(h)(2), which permits service in any manner permitted by Rule 4(f) for serving an
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`individual in a foreign country. Fed. R. Civ. P. 4(h)(2). Under Rule 4(f)(3), federal courts have
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`discretionary authority to direct service “by other means not prohibited by international
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`agreements.” Fed. R. Civ. P. 4(f)(3). A court can order any method of service so long as it is
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`“reasonably calculated, under all the circumstances, to apprise interested parties of the pendency
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`of the action and afford them an opportunity to present their objections.” Mullane v. Cent.
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`Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 6 of 14 PageID #: 829
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`IV. ARGUMENT
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`A. Alternative Service Is Warranted Pursuant to Fed. R. Civ. P. 4(f)(3)
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`Authorizing AGIS to serve ZTE Corp. via e-mail to ZTE Corp’s U.S. Counsel or via
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`service in accordance with the Federal Rules of Civil Procedure on ZTE Corp.’s Domestic
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`Subsidiary is permitted under Rule 4(f)(3) because neither method of service is prohibited by
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`international agreement and both comport with due process. Indeed, the Federal Circuit has
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`expressly stated that Rule 4(f)(3) “plainly permits service on [foreign] defendants’ domestic
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`subsidiaries or domestic counsel.” Nuance Comms., Inc. v. Abbyy Software House, 626 F.3d
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`1222, 1239 (Fed. Cir. 2010); see also Rio Props. Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015
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`(9th Cir. 2002); Affinity Labs of Texas, LLC v. Nissan N. Am. Inc., No. 13-CV-369, 2014 WL
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`11342502, at *4 (W.D. Tex. July 2, 2014); Canal Indem. Co. v. Castillo, No. 09-cv-43-AM-CW,
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`2011 WL 13234740, at *2 (W.D. Tex. Mar. 30, 2011); Knit With v. Knitting Fever, Inc., Nos. 08-
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`cv-4221, 2010 WL 4977944, at *4 (E.D. Pa. Dec. 7, 2010); RSM Prod. Corp. v. Fridman, No.
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`06-cv-11512, 2007 WL 2295907, at *4-5 (S.D.N.Y. Aug. 10, 2007). Moreover, alternative
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`service is warranted in the interests of judicial economy to mitigate any additional delay in the
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`prosecution of this action that would result in waiting for the Central Authority to effectuate
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`service through the Hague Convention.
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`1. Service on ZTE Corp.’s U.S. Counsel or Domestic Subsidiary in the U.S. Is
`Not Prohibited by the Hague Convention
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`An order permitting alternative service on ZTE Corp. via its U.S. Counsel or Domestic
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`Subsidiary in the United States is permitted by Rule 4(f)(3) because such methods do not
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`implicate international agreement, i.e., the Hague Convention, and thus, do not violate it. See
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`Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707-08 (1988). The rules and
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`procedures regarding service set forth by the Hague Convention are only applicable “in civil or
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`commercial matters, where there is occasion to transmit a judicial or extrajudicial document for
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`service abroad.” Hague Convention, Art. 1 (emphasis added). Where valid service occurs in
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`the United States, the Hague Convention is not implicated, regardless of the location of the
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`party. Volkswagenwerk Aktiengesellschaft, 486 U.S. at 707; Brown v. China Integrated Energy,
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`Inc., 285 F.R.D. 560, 564 (C.D. Cal. 2012). The U.S. Supreme Court has explained, “Where
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`service on a [foreign defendant’s] domestic agent is valid and complete . . . our inquiry ends and
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`the Convention has no further implications.” Volkswagenwerk Aktiengesellschaft, 486 U.S. at
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`707.
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`Because AGIS is seeking to serve ZTE Corp.’s U.S. Counsel or ZTE Corp.’s Domestic
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`Subsidiary in the United States, the rules and procedures governing service set forth in the
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`Hague Convention are inapplicable and irrelevant. Therefore, such service methods do not
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`violate the Hague Convention and are permitted under Rule 4(f)(3).
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`2. Service on ZTE Corp.’s U.S. Counsel or Domestic Subsidiary Comports with
`Due Process
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`Service on ZTE Corp. through its U.S. Counsel or Domestic Subsidiary comports with
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`due process because service on either is “reasonably calculated” to apprise ZTE Corp. of the
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`instant action and provide ZTE Corp. with an opportunity to respond. See Mullane, 339 U.S. at
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`314; Affinity Labs, 2014 WL 11342502, at *4.
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`Service on a foreign defendant’s U.S. counsel comports with due process where the
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`foreign defendant and its U.S. counsel are in regular contact because such contact makes it
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`reasonably calculated that the foreign defendant will receive notice of the action. See Nuance,
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`626 F.3d at 1239; Affinity Labs, 2014 WL 11342502, at *4 (finding service on foreign defendant
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`through its U.S. counsel comported with due process because defendant was in regular
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`communication with its U.S. counsel); Canal Indem., 2011 WL 13234740, at *2 (same); Knit
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 8 of 14 PageID #: 831
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`With, 2010 WL 4977944, at *5 (same); Marlabs Inc. v. Jakher, No. 07-cv-04074, 2010 WL
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`1644041, at *3 (D.N.J. Apr. 22, 2010) (same).
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`Here, McDermott Will & Emery and Pillsbury currently represent ZTE Corp. in pending
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`proceedings in the United States. McDermott Will & Emery currently represents ZTE Corp. in
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`Fundamental Innovation Sys. Int’l, LLC v. ZTE Corp., et al., No. 3:17-cv-1827 (N.D. Tex. Feb.
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`13, 2017) pending in the Northern District of Texas. Ex. 4-10, 17. In fact, in Fundamental
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`Innovation the court granted the plaintiff’s request to serve ZTE Corp. under Rule 4(f)(3) by
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`serving McDermott Will & Emery explaining that service on this firm is reasonably calculated
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`to apprise ZTE Corp. of the action. Fundamental Innovation, 3:17-cv-1827, Dkt 91. Indeed,
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`service in that case through McDermott Will & Emery apprised ZTE Corp. of the action
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`because ZTE Corp. has been an active participant in that litigation. Ex. 17. For example,
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`McDermott Will & Emery has submitted at least sixteen (16) documents to the court on behalf
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`of ZTE Corp, including a motion to dismiss, a claim construction brief, and an answer to the
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`complaint. Id. McDermott Will & Emery’s representation of ZTE Corp. in Fundamental
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`Innovation makes it reasonably certain that McDermott Will & Emery is in regular
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`communication with ZTE Corp, particularly in light of McDermott Will & Emery’s ethical
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`obligations to, inter alia, keep ZTE Corp. informed as to the status of a matter so that ZTE
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`Corp. can make reasonably informed decisions regarding the representation. Texas Disciplinary
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`Rules of Professional Conduct, Rule 1.03 (requiring lawyers that appear before a Texas tribunal
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`“keep a client reasonably informed about the status of a matter” and “explain a matter to the
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`client reasonably necessary to permit the client to make informed decisions regarding the
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`representation”). Thus, serving McDermott Will & Emery in this action is reasonably
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`calculated to apprise ZTE Corp. of the instant action.
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 9 of 14 PageID #: 832
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`Additionally, Pillsbury currently represents ZTE Corp. in connection with ZTE Corp.’s
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`petition for inter partes review of a patent owned by Hitachi Maxell, Ltd. before the PTAB.
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`Ex. 16. Pillsbury has submitted at least twenty-six (26) documents to the PTAB on behalf of
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`ZTE Corp. Ex. 18. Pillsbury’s representation of ZTE Corp. in that PTAB proceeding makes it
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`reasonably certain that Pillsbury is in regular contact with ZTE Corp., particularly in light of
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`Pillsbury’s ethical obligation to consult with ZTE Corp. about ZTE Corp.’s objectives and about
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`the status of the proceeding. United States Patent and Trademark Office, Rules of Professional
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`Conduct § 11.104 (requiring a lawyer to “reasonably consult with its client about the means by
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`which its client’s objectives are to be accomplished” and “keep the client reasonably informed
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`about the status of the matter”). Thus, serving Pillsbury in this action is reasonably calculated
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`to provide ZTE Corp. with notice of the instant action.
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`Serving ZTE Corp.’s Domestic Subsidiary also comports with due process. Due to the
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`close relationship between ZTE Corp. and ZTE (USA), Inc., serving ZTE (USA), Inc. is
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`reasonably certain to apprise ZTE Corp. of the instant action. See Nuance, 626 F.3d at 1240
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`(finding service on foreign defendant through its domestic affiliate comported with due
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`process); Affinity Labs, 2014 WL 11342502, at *4 (same); Jin Mi Ryung v. TJ Media USA, Inc.,
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`No. 13-cv-4935, 2014 WL 631074, at *2 (N.D. Cal. Feb. 18, 2014) (same). ZTE Corp. and
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`ZTE (USA), Inc. share at least two executive officers: (1) Lixin Cheng serves as the CEO and
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`Chairman of ZTE (USA), Inc. and Senior Vice President of ZTE Corp (Ex. 16); and
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`(2) Matthew Bell serves as the Chief Compliance Officer at ZTE (USA), Inc. and the Chief
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`Export Compliance Officer and Legal Counsel at ZTE Corp. (Exs. 14, 15). Since ZTE (USA),
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`Inc. is a defendant in this action, it is almost certain that its only key executives, Mr. Cheng and
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 10 of 14 PageID #: 833
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`Mr. Bell, are on notice of the lawsuit.2 And because Mr. Cheng and Mr. Bell are also top
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`executives at ZTE Corp., it is highly likely that ZTE Corp. is already on notice of the instant
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`lawsuit and, at a minimum, this overlap in key executives makes it reasonably calculated that
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`service on ZTE Corp.’s Domestic Subsidiary will apprise ZTE Corp. of the instant action.
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`Accordingly, service on ZTE Corp. via its U.S. Counsel or its Domestic Subsidiary is
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`reasonably calculated to apprise ZTE Corp. of the action (to the extent ZTE Corp. is not already
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`aware of the action) and afford ZTE Corp. an opportunity to object. Nuance, 626 F.3d at 1240;
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`Affinity Labs, 2014 WL 11342502, at *4.
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`B. Alternative Service is Also Warranted in the Interests of Judicial Economy
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`Numerous courts permit alternative service to avoid the unnecessary delay associated
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`with serving a foreign defendant through the Hague Convention. See e.g., GLG Life Tech Corp.
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`Sec. Litig., 287 F.R.D. 262, 266 (S.D.N.Y. 2012) (ordering alternative service via defendant’s
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`counsel noting that “courts have frequently cited delays in service under the Hague Convention
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`as supporting an order of alternative service under Rule 4(f)(3)”); Brown v. China Integrated
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`Energy, Inc., 285 F.R.D. 560, 562–66 (C.D. Cal. 2012) (ordering alternative service noting that
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`service under the Hague Convention would take four to six months); Ackerman v. Global
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`Vehicles U.S.A., Inc., No. 4:11-cv-687, 2011 WL 3847427, at *3 (E.D. Mo. Aug. 26, 2011)
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`(authorizing service on defendant’s U.S. counsel “so as to not further delay” the lawsuit); Knit
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`With v. Knitting Fever, Inc., No. 08-4221, 2010 WL 4977944, at *5 (E.D. Pa. Dec. 7, 2010)
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`(granting plaintiff leave to serve a defendant via its U.S. counsel where Hague Convention
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`service would take up to three months). Moreover, the Advisory Committee’s Notes to Rule
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`4(f)(3) explain that the use of alternative methods of service is warranted when “the foreign
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`2 Pursuant to the Capital IQ Report for ZTE (USA), Inc., Mr. Bell and Mr. Cheng are the only “Key Executives”
`employed at ZTE (USA), Inc. Ex. 19 at 2 (Capital IQ Report listing key executives for ZTE (USA), Inc.).
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 11 of 14 PageID #: 834
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`country’s Central Authority [fails] to effect service within the six-month period provided by the
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`[Hague] Convention.”
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`AGIS initiated service of the Summons and Complaint through the Hague Convention
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`more than nine months ago. Ex. 1. Despite being informed that service would be effectuated
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`within three to six months of transmitting the Summons and Complaint to the Central Authority,
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`to date, ZTE Corp. still has not been served. The Central Authority has stated that the earliest
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`ZTE Corp. will be served is sometime in August. Ex. 3. The Central Authority has been
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`engaged in the practice of purposefully delaying service to prevent assets from leaving China,
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`making it uncertain that service will even occur in August. Id. Under the circumstances here,
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`an order permitting AGIS to serve ZTE Corp. via its U.S. Counsel or its Domestic Subsidiary
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`will apprise ZTE Corp. of the instant action (to the extent it is not already aware of the action),
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`afford it an opportunity to appear, and will avoid this unnecessary delay.
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`V. CONCLUSION
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`Accordingly, AGIS respectfully requests that the Court grant its Motion for Alternative
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`Service and issue an Order permitting AGIS to serve ZTE Corp. with the Summons and
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`Complaint and Amended Complaint via e-mail to its U.S. Counsel, McDermott Will & Emery
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`LLP and Pillsbury Winthrop Shaw Pittman LLP or, in the alternative, via service in accordance
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`with the Federal Rules of Civil Procedure to its Domestic Subsidiary, ZTE (USA), Inc.
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`Dated: May 21, 2018
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`Respectfully submitted,
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`BROWN RUDNICK LLP
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`/s/ Alfred R. Fabricant
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`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Peter Lambrianakos
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 12 of 14 PageID #: 835
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`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Joseph M. Mercadante
`NY Bar No. 4784930
`Email: jmercadante@brownrudnick.com
`Alessandra C. Messing
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`Shahar Harel
`NY Bar No. 4573192
`Email: sharel@brownrudnick.com
`John A. Rubino
`NY Bar No. 5020797
`Email: jrubino@brownrudnick.com
`Daniel J. Shea
`NY Bar No. 5430558
`Email: dshea@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`
`Samuel F. Baxter
`Texas State Bar No. 01938000
`sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`jtruelove@mckoolsmith.com
`McKOOL SMITH, P.C.
`104 East Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: 903-923-9000
`Facsimile: 903-923-9099
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`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT, LLC
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`11
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 13 of 14 PageID #: 836
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`CERTIFICATE OF CONFERENCE
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`Pursuant to Local Rule CV-7(h), counsel for AGIS Software Development, LLC
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`conferred with Lionel Lavenue, counsel for Defendants ZTE (USA), Inc. and ZTE (TX), Inc. via
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`teleconference on April 11, 2018 regarding the motion for alternative service. On April 17,
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`2018, Mr. Lavenue confirmed via e-mail that ZTE (USA), Inc. and ZTE (TX), Inc. oppose the
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`relief sought in this motion.
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`/s/ Vincent J. Rubino, III
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` Vincent J. Rubino, III
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`Case 2:17-cv-00517-JRG Document 64 Filed 05/21/18 Page 14 of 14 PageID #: 837
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to
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`have consented to electronic service are being served with a copy of this document via
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`the Court’s CM/ECF system per Local Rule CV-5(a)(3) on May 21, 2018.
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`/s/ Alfred R. Fabricant
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` Alfred R. Fabricant
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