Case 6:22-cv-01162-ADA Document 66 Filed 08/16/23 Page 1 of 5
`Case: 23-132 Document: 16 Page: 1 Filed: 08/16/2023
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`NOTE: This order is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`2023-132
`
`In re: REALTEK SEMICONDUCTOR CORPORA-
`TION,
`Petitioner
`______________________
`
`2023-132
`______________________
`
`On Petition for Writ of Mandamus to the United States
`District Court for the Western District of Texas in No. 6:22-
`cv-01162-ADA, Judge Alan D. Albright.
`______________________
`
`ON PETITION
`______________________
`
`Before CHEN, MAYER, and STARK, Circuit Judges.
`PER CURIAM.
`
`O R D E R
`This petition for a writ of mandamus is from a patent
`
`infringement suit brought by ParkerVision, Inc. against
`Realtek Semiconductor Corporation in the United States
`District Court for the Western District of Texas. When Re-
`altek, which is based in Taiwan, contested the sufficiency
`of service of process and did not timely file an answer to the
`complaint, ParkerVision moved (though later withdrew) a
`motion for leave to effect alternative service of process and
`subsequently moved for entry of default. Following a
`
`
`
`
`
`CLERK, U.S. DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`
`BY: ________________________________
`
`FILED
`
`DEPUTY
`
`August 16, 2023
`
`ad
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`

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`IN RE: REALTEK SEMICONDUCTOR CORPORATION
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`hearing, the district court denied the motion for default but
`ordered Realtek’s appearing attorney to accept service of
`process on his client’s behalf within 30 days.
`Realtek now petitions to vacate that order. Before we
`may issue the “extraordinary remedy” of a writ of manda-
`mus, three conditions must be satisfied: (1) the petitioner
`must have “no other adequate means to attain the relief [it]
`desires,” (2) the petitioner must show that the “right to is-
`suance of the writ is clear and indisputable,” and (3) the
`court “in the exercise of its discretion, must be satisfied
`that the writ is appropriate under the circumstances.”
`Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81
`(2004) (internal quotation marks and citations omitted).
`Realtek has not satisfied that demanding standard.*
`In general, a party seeking to vindicate its right not to
`be forced to appear before a court at all must ordinarily
`wait until after a final decision in order to seek appellate
`review. See In re Roche Molecular Sys., Inc., 516 F.3d 1003,
`1004 (Fed. Cir. 2008); In re TCT Mobile Int’l Ltd., 783 F.
`App’x 1028, 1029 (Fed. Cir. 2019) (“Because a defendant
`
`* We have also set out an alternative, narrow basis for
`granting mandamus: where such relief “is important to
`proper judicial administration.” Stingray, 56 F.4th 1379,
`1382 (Fed. Cir. 2023); see also In re Micron Tech., Inc., 875
`F.3d 1091, 1096 (Fed. Cir. 2017) (granting mandamus re-
`view to “reduce the widespread disparities in rulings on . .
`. fundamental legal standards”). The petition before us in-
`vokes this alternative basis as well as the general three-
`conditions basis for mandamus. See, e.g., Petition at 11-14;
`Reply at 4-7. However, we perceive here no “unusual” and
`“exceptional” circumstances as are necessary to warrant
`the exercise of our discretion to provide mandamus relief
`under this narrow, alternative basis, Stingray, 56 F.4th at
`1382, particularly given that the petition fails to satisfy
`any of the three Cheney conditions for granting mandamus.
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`IN RE: REALTEK SEMICONDUCTOR CORPORATION
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`can obtain meaningful review of a denial of a motion to dis-
`miss for lack of jurisdiction after final judgment, manda-
`mus is ordinarily not available.”); In re BNY ConvergEx
`Grp., LLC, 404 F. App’x 484, 485 (Fed. Cir. 2010) (“To grant
`mandamus simply because a party asserts it will be forced
`to expend unnecessary costs would make a large class of
`interlocutory orders routinely reviewable,” “clearly under-
`min[ing] the extraordinary nature” of mandamus relief).
`Moreover, Realtek has not shown a clear and indisput-
`able right to relief. “Before a federal court may exercise
`personal jurisdiction over a defendant, the procedural re-
`quirement of service of summons must be satisfied.” Omni
`Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104
`(1987). “[S]ervice of process in a federal action is covered
`generally by Rule 4 of the Federal Rules of Civil Proce-
`dure.” Id. Realtek relies specifically on Rule 4(f)(2), which
`provides that “if there is no internationally agreed means,
`or if an international agreement allows but does not specify
`other means,” process may be served “by a method that is
`reasonably calculated to give notice” as “prescribed by the
`foreign country’s law for service in that country in an action
`in its courts of general jurisdiction.” In support, Realtek
`cites to some district court cases that have concluded ser-
`vice under Rule 4(f)(2) must be administered by a court
`clerk of Taiwan. Because that was not done here, Realtek
`contends service is improper.
`But that argument does not account for the fact that
`Rule 4(f)(3), which “stands independently” and “on equal
`footing” with Rule 4(f)(2), Nuance Commc’ns, Inc. v. Abbyy
`Software House, 626 F.3d 1222, 1239 (Fed. Cir. 2010) (in-
`ternal quotation marks and citation omitted), authorizes
`courts to direct “other means” of service as long as such
`means are not “prohibited by international agreement.”
`While some courts in applying Rule 4(f)(3) “have looked to
`whether there has been a showing that the plaintiff has
`reasonably attempted to effectuate service . . . by conven-
`tional means,” those considerations merely “guide the
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`IN RE: REALTEK SEMICONDUCTOR CORPORATION
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`exercise of discretion, and are not akin to an exhaustion
`requirement.” In re OnePlus Tech. (Shenzhen) Co., No.
`2021-165, 2021 WL 4130643, at *3 (Fed. Cir. Sept. 10,
`2021).
`Here, we find no clear abuse of discretion in the district
`court’s application of Rule 4(f)(3). Realtek identifies no in-
`ternational agreement prohibiting the ordered means of
`service, and other courts have concluded that “[t]his form
`of service is not prohibited by international agreement, as
`Taiwan is not a party to the Hague Convention or to any
`other treaty or agreement with the United States regard-
`ing service of process,” Wei Su v. Sotheby’s, Inc., No. 17-CV-
`4577 (VEC), 2018 WL 4804675, at *3 (S.D.N.Y. Oct. 3,
`2018).
`Furthermore, the district court found that ParkerVi-
`sion had attempted to serve Realtek in good faith and the
`amount of time that the case had been around justified its
`intervention. While Realtek argues that the district court
`should have required ParkerVision to make more of an ef-
`fort to serve via other means before resort to Rule 4(f)(3),
`“[g]iven the broad discretion accorded to district courts in
`determining whether to grant relief under Rule 4(f)(3),” we
`cannot say that mandamus relief is warranted in these cir-
`cumstances. OnePlus, 2021 WL 4130643, at *4.
`We also are unpersuaded by Realtek’s argument that
`service cannot be effective on its attorney, who Realtek con-
`tends was not authorized to receive service and appeared
`only to contest service. Realtek cites to United States v.
`Ziegler Bolt & Parts Co., 111 F.3d 878 (Fed. Cir. 1997), but
`that case does not support its cause. In Ziegler, the Court
`of International Trade (“CIT”) found that attempts to serve
`a corporation by mailing a copy of the complaint to its at-
`torney were insufficient under a CIT rule materially the
`same as Rule 4(h)(1), which authorizes service for a corpo-
`ration on an “officer, a managing or general agent, or . . .
`any other agent authorized by appointment or by law to
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`IN RE: REALTEK SEMICONDUCTOR CORPORATION
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`receive service.” We affirmed on the ground that there was
`no evidence that the attorney had authority to accept ser-
`vice, noting that “[t]he mere relationship between a defend-
`ant and his attorney does not, in itself, convey authority to
`accept service.” Ziegler, 111 F.3d at 881.
`The problem for Realtek here is that none of the cases
`it has cited, including Ziegler, involved Rule 4(f)(3). In fact,
`other courts have held that “[t]he requirements of Rule
`4(h)(1) do not carry over to Rule 4(f)(3)” and “thus have
`sanctioned service on United States counsel as an alterna-
`tive means of service under Rule 4(f)(3) without requiring
`any specific authorization by the defendant for the recipi-
`ent to accept service on its behalf.” Freedom Watch, Inc. v.
`OPEC, 766 F.3d 74, 83 (D.C. Cir. 2014) (citing cases). Re-
`altek points to no contrary authority.
`Finally, Realtek argues that the court’s order directing
`alternative service to its counsel violated its due process
`rights. But it has failed to show that the means of service
`was not reasonably calculated to provide notice of the ac-
`tion and afford an opportunity to respond. See Mullane v.
`Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
`Realtek has not shown that it was not in communication
`with its attorney who appeared before the district court at
`the hearing, and its attorney told the district court that 30
`days would be sufficient to inform Realtek to file its an-
`swer. Appx15. Under such circumstances, we discern no
`clear and indisputable constitutional infirmity.
`
`Accordingly,
`
`IT IS ORDERED THAT:
`The petition is denied.
`
`
` August 16, 2023
` Date
`
`
`FOR THE COURT
`
` /s/ Jarrett B. Perlow
` Jarrett B. Perlow
`Clerk of Court
`
`