Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`Civil Action No. 1:22-cv-22706-RNS
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`JURY TRIAL DEMANDED
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`BELL NORTHERN RESEARCH, LLC,
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`Plaintiff,
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`v.
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`HMD AMERICA, INC., HMD GLOBAL
`OY, SHENZHEN CHINO-E
`COMMUNICATION CO. LTD., HON HAI
`PRECISION INDUSTRY CO., LTD,
`TINNO MOBILE TECHNOLOGY CORP.,
`SHENZHEN TINNO MOBILE CO., LTD.,
`TINNO USA, INC., UNISOC
`TECHNOLOGIES CO. LTD.,
`SPREADTRUM COMMUNICATIONS
`USA, INC., WINGTECH TECHNOLOGY
`CO. LTD., WINGTECH
`INTERNATIONAL, INC., HUAQIN CO.
`LTD., BEST BUY CO., INC., BEST BUY
`STORES L.P., TARGET CORP.,
`WALMART INC.,
` Defendants.
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`PLAINTIFF’S UNOPPOSED MOTION FOR LEAVE TO EFFECT ALTERNATIVE
`SERVICE UNDER RULE 4(f)(3)
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`DATED: October 20, 2022
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`1
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`Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 2 of 12
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`TABLE OF CONTENTS
`Introduction ............................................................................................................................. 1
`I.
`FACTUAL BACKGROUND ............................................. Error! Bookmark not defined.
`II.
`Defendant Chino-E Has Valid Email Addresses and Plaintiff BNR Has Been Diligent in
`A.
`Efforts to Notify Chino-E of the Litigation ................................................................................ 2
`III.
`LEGAL STANDARD .......................................................................................................... 4
`IV. Argument ............................................................................................................................. 6
`A.
`Service on Chino-E by Email Is Appropriate Under Rule 4(f)(3) ................................... 6
`B.
`Formal Hague Service Will Cause Significant Delay and Expense................................. 7
`V.
`CONCLUSION .................................................................................................................... 8
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`i
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`Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 3 of 12
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`TABLE OF AUTHORITIES
`
`Cases
`
`Prewitt Enters. v. OPEC,
` 353 F.3d 916 (11th Cir. 2003) .................................................................................................... 7
`
`Rio Properties, Inc. v. Rio Int’l Interlink,
` 284 F.3d 1007 (9th Cir. 2002) .................................................................................................... 7
`
`United States CFTC v. Aliaga.,
` 272 F.R.D. 617 (S.D. Fla. 2011) ................................................................................................. 8
`
`Mullane v. Cent. Hanover Bank & Trust Co.,
` 339 U.S. 306 (1950) .................................................................................................................... 8
`
`Tapestry, Inc. v. 2012coachoutlets.com,
` No. 17-24561-Civ-Scola, 2018 U.S. Dist. LEXIS 233014 (S.D. Fla. Feb. 6, 2018) .................. 8
`
`Lexmark Int’l, Inc. v. Ink Techs. Printer Supplies, LLC,
` 291 F.R.D. 172 (S.D. Ohio 2013) ............................................................................................... 8
`
`Gamboa v. Ford Motor Co.,
` 414 F. Supp. 3d 1035 (E.D. Mich. 2019) .................................................................................... 8
`
`Microsoft Corp. v. Goldah.com Network Technology Co., Ltd.,
` No. 17-2896 LHK, 2017 U.S. Dist. LEXIS 168537 (N.D. Cal. Oct. 11, 2017) ......................... 9
`
`WeWork Cos. v. WePlus (Shanghai) Tech. Co.,
` Case No. 5:18-cv-04543-EJD, 2019 U.S. Dist. LEXIS 5047 (N.D.Cal. Jan. 10, 2019) ............. 9
`
`Lepone-Dempsey v. Carrol County Comm'rs.
` 476 F.3d 1277 (11th Cir. 2007) .................................................................................................. 9
`
`Horenkamp v. Van Winkle & Co.
` 402 F.3d 1129 (11th Cir. 2005) .................................................................................................. 9
`
`
`Statutes
`Fed. R. Civ. P. 4 .............................................................................................................................. 3
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`ii
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`Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 4 of 12
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`I.
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`INTRODUCTION
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`Plaintiff Bell Northern Research, LLC (“BNR”) files this Motion to effect service by
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`alternative means on Defendant Shenzhen Chino-E Communication Co. Ltd. (“Chino-E”). After
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`numerous unsuccessful attempts to secure Chino-E’s participation in this litigation, BNR seeks
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`this Court’s permission to serve Chino-E through e-mail. The proposed method of service is
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`permitted by the Federal Rules of Civil Procedure, and it is not prohibited by the Hague
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`Convention on the Service Abroad of Judicial and Extrajudicial Documents (the “Hague
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`Convention”) or any other applicable international agreement. Moreover, the proposed service
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`would satisfy due process, as Chino-E publicly operates websites on the Internet and utilize e-mail
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`means as a reliable form of contact.
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`Granting the instant motion will avoid unwarranted and unfair delay. With the exception
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`of Chino-E, Plaintiff BNR has been successful in serving the other litigants in this case, or is
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`currently in discussions concerning service, and their respective response deadlines are
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`approaching. If the Court grants Plaintiff’s motion, it will enable the Chino-E Defendant to be
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`similarly positioned as the others regarding response dates. Under these circumstances, the
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`resources of the Court would be better served by granting Plaintiff’s motion, which will result in
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`a more streamlined litigation process.
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`The following table briefly summarizes BNR’s efforts to date to contact Chino-E to notify
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`them of the pending lawsuit and obtain a waiver of service from them as to the Complaint. The
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`Waiver of Service packet referenced below includes copies of the Complaint and Exhibits thereto
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`(Dkt. 1), Summons, Form AO 399 (Waiver of the Service of Summons), and Form AO 398 (Notice
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`of a Lawsuit and Request to Waive Service of a Summons).
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`September 9, 2022
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`Counsel for BNR emailed a copy of correspondence from BNR’s
`counsel to Chino-E, including the Waiver of Service packet, to
`gms@ontim.cn. (Ex. A at 2)
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`1
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`Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 5 of 12
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`September 9, 2022
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`September 9, 2022
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`September 9, 2022
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`September 9, 2022
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`Counsel for BNR emailed a copy of correspondence from BNR’s
`counsel to Chino-E, including the Waiver of Service packet, to
`cncekor@chino-e.com. (Ex. A at 1.)
`Counsel for BNR, Adam Woodward, called Chino-e via phone at +86
`0769-88609999, listed at http://www.chino-
`e.com/copy_contact_105032.html but received no answer
`Devlin Law Firm mailed a Waiver of Service packet to Chino-E at A-
`1203, SmartValley, 30, Songdomirae-ro, Yeonsu-gu, Incheon,
`Republic of Korea (21990) (FED EX # 5783 0877 3163). (Ex. A at 8.)
`Devlin Law Firm mailed a waiver of service packet to Chino-E at
`Building 2, Zhengxiang Business Center, 153 North Wuyi Road,
`Fuzhou City, Fujian Province, China
`(FED EX # 5783 0877 3174). (Ex. A at 12.)
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`II.
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`FACTUAL BACKGROUND
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`On August 26, 2022, BNR filed a Complaint against Defendants HMD America, Inc.,
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`HMD Global Oy, Shenzhen Chino-E Communication Co. Ltd. (“Chino-E”), Hon Hai Precision
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`Industry Co., Ltd., Tinno Mobile Technology Corp., Shenzhen Tinno Mobile Co., LTD., Tinno
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`USA Inc., Unisoc Technologies Co. Ltd., Spreadtrum Communications USA, Inc., Wingtech
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`Technology Co., Ltd., Wingtech International, Inc., Huaqin Co. Ltd., Best Buy Co., Inc., Best Buy
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`Stores L.P., Target Corp., and Walmart Inc. for infringement of U.S. Patents Nos. 8,204,554,
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`7,319,889, RE 48,629, 8,416,862, 7,564,914, 7,957,450, 6,941,156, 6,696,941, 7,039,435,
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`6,963,129, 6,858,930, 8,396,072, and 8,792,432. (Dkt. 1.) Defendant Chino-E is a Chinese
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`company. (Dkt. 1 at ¶5.) The Complaint alleges that the Defendants, including Chino-E, make,
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`use, sell import and/or provide or cause to be used mobile phones and tablets that infringe the
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`asserted patents. (See Dkt. 1 at ¶ 113.) With the exception of Chino-E, all of the other Defendants
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`have been served or Plaintiff is in contact with the Defendant concerning service.
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`A.
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`Defendant Chino-E Has Valid Email Addresses and Plaintiff BNR Has Been
`Diligent in Efforts to Notify Chino-E of the Litigation
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`According to Chino-E’s website, they provide three email addresses for correspondence:
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`feng.shi@ontim.cn, gms@ontim.cn, and cncekor@chino-e.com. (Ex. A at 4, 5.) At the bottom of
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`2
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`Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 6 of 12
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`each page of its website, Chino-E lists eight separate addresses for itself and related businesses but
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`does not identify any U.S. affiliates. (Ex. A at 4.). Plaintiff mailed waiver packets to two of these
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`addresses which Plaintiff had previously confirmed as being valid mailing addresses for Chino-E.
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`See Bell Northern Research, LLC v. HMD America Inc., No. 1:22-cv-21035-RNS, Dkt. 44 at 4–6
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`(S.D. Fla. July 12, 2022).
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`On September 9, 2022, the Devlin Law Firm, counsel for BNR, sent a waiver of service
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`packet containing the Complaint, Exhibits, and Forms AO 398 and AO 399 via FedEx to Chino-E
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`at the Incheon, Republic of Korea and Fuzhou City, Fujian, China addresses. (Ex. A at 8.) The
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`same day Devlin Law Firm also emailed a copy of the same to gms@ontim.cn and
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`cncekor@chino-e.com. (Ex. A at 12.) Counsel for BNR, Adam Woodward, also attempted to
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`reach Chino-E by phone at the phone number listed on their website (+86 0769-88609999 listed
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`at http://www.chino-e.com/copy_contact_105032.html) to confirm the physical and email
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`addresses. The call was not answered and no option to leave a voicemail was given. The emails
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`sent to gms@ontim.cn and cncekor@chino-e.com did not bounce back and therefore these are
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`considered operational, valid email addresses.
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`On Tuesday, September 13, 2022, FedEx informed Plaintiff that Chino-E had moved and
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`was no longer at A-1203, SmartValley, 30, Songdomirae-ro, Yeonsu-gu, Incheon, Republic of
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`Korea (21990), despite still listing the address on Chino-E’s website and previously accepting mail
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`there. See id., Dkt. 44 at 4–6.
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`On Wednesday, September 14, FedEx informed Plaintiff that Chino-E had moved from
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`another location and was no longer at Building 2, Zhengxiang Business Center, 153 North Wuyi
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`Road, Fuzhou City, Fujian Province, China, despite still listing the address on Chino-E’s website
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`and previously accepting mail there. See id.
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`Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 7 of 12
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`III. LEGAL STANDARD
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`Rule 4(f) provides means for effectuating service upon an individual defendant located in
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`a foreign country. Fed. R. Civ. P. 4(f)(1)–(3). The foreign defendant may be served using the
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`methods authorized by the Hague Convention. Fed. R. Civ. P. 4(f)(1). The foreign defendant may
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`also be served under Rule 4(f)(3) “by other means not prohibited by international agreement, as
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`the court orders.” Fed. R. Civ. P. 4(f)(3). Service on a foreign defendant under Rule 4(f)(3) must
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`be authorized by the court pursuant to its discretionary power. Prewitt Enters. v. OPEC, 353 F.3d 916,
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`921 (11th Cir. 2003) (holding that a court’s decision on a motion for alternative service is discretionary)
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`(citing Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002)). The court’s
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`discretionary exercise of Rule 4(f)(3) “is neither a last resort nor extraordinary relief.” Brookshire
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`Bros., Ltd. v. Chiquita Brands Int’l, Inc., No. 05-CIV-21962-COOKE/BROWN, 2007 U.S. Dist.
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`LEXIS 39495, at *2 (S.D. Fla. May 31, 2007) (citing Rio Props., 284 F.3d at 1015). Indeed, Rule 4(f)
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`does not require a party to attempt service of process by the Hague Convention or “by those
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`methods enumerated in Rule 4(f)(2), including by diplomatic channels and letters rogatory, before
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`petitioning the court for alternative relief under Rule 4(f)(3).” Rio Props. at 1014-15.
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`Rule 4(h)(2) provides that a foreign corporation must be served “in any manner prescribed
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`by Rule 4(f).” Fed. R. Civ. P. 4(h)(2). A foreign corporation can be served pursuant to Rule
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`4(f)(3). United States CFTC v. Aliaga, 272 F.R.D. 617, 619 (S.D. Fla. 2011). The method of
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`service on a foreign corporation under Rule 4(f)(3) must comport with “constitutional notions of
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`due process.” Rio Props. at 1016. “[T]he method of service crafted by the district court must be
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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.” Id. (quoting Mullane v.
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`Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Specifically,
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`Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 8 of 12
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`What constitutes appropriate service varies depending on the circumstances of the
`case and turns on the court’s determination of whether the alternative method is
`reasonably calculated to apprise the parties of the pendency of the action and
`afford them an opportunity to present their objections.
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`Tapestry, Inc. v. 2012coachoutlets.com, No. 17-24561-Civ-Scola, 2018 U.S. Dist. LEXIS 233014,
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`at *4 (S.D. Fla. Feb. 6, 2018) (authorizing alternative service under Rule 4(f)(3) on foreign
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`defendants via e-mail and publication) (citing Philip Morris USA, Inc. v. Veles Ltd., 2007 U.S.
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`Dist. LEXIS 19780, 2007 WL 725412, at *2 (S.D.N.Y. Mar. 12, 2007).
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`Service by e-mail is not prohibited by the Hague Convention. See, e.g., Tapestry, 2018
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`U.S. Dist. LEXIS 233014, at *3. Moreover, this Court, and numerous district courts, have held
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`that service by e-mail on a foreign defendant is permissible under Rule 4(f)(3) even where the
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`defendant’s country, such as China, has declared its opposition to the use of postal channels
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`pursuant to article 10(a) of the Hague Convention. Id.; Lexmark Int’l, Inc. v. Ink Techs. Printer
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`Supplies, LLC, 291 F.R.D. 172, 175 (S.D. Ohio 2013) (“Email service has been approved even
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`where, as here, the country objects to Article 10 of the Hague Convention.”); Gamboa v. Ford
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`Motor Co., 414 F. Supp. 3d 1035, 1042 (E.D. Mich. 2019) (“Email is not listed as a means of
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`service under article 10.”); Microsoft Corp. v. Goldah.com Network Tech. Co., No. 17-CV-02896-
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`LHK, 2017 U.S. Dist. LEXIS 168537, at *4 (N.D. Cal. Oct. 11, 2017) (“Yet China’s objection to
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`Article 10 does not prohibit the email service the Court ordered in the instant case”); WeWork Cos.
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`v. WePlus (Shanghai) Tech. Co., No. 5:18-cv-04543-EJD, 2019 U.S. Dist. LEXIS 5047, at *8
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`(N.D. Cal. Jan. 10, 2019) (“Given the weight of authority, the court finds that China’s objection to
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`Article 10 regarding postal service does not mean that email service is ‘prohibited by international
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`agreement.’”).
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`Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 9 of 12
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`IV. ARGUMENT
`Service on Chino-E by Email Is Appropriate Under Rule 4(f)(3)
`A.
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`Here, service on foreign Defendant Chino-E by e-mail satisfies due process by apprising
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`them of the pending litigation and providing them the opportunity to answer BNR’s claims. The
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`Defendant publicly operates a website on the Internet and provides electronic means to contact
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`them via e-mail. All of the e-mail addresses that BNR requests to be used for service are still
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`publicly shown on Defendant’s websites and Plaintiff’s attempts to use these e-mail addresses
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`demonstrates that they are valid email addresses.
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`Email service on Chinese-based Defendant Chino-E in this case is appropriate under Rule
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`4(f)(3) as it is “reasonably calculated, under all the circumstances, to apprise interested parties of
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`the pendency of the action and afford an opportunity to present their objections.” Mullane v. Cent.
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`Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Facebook, Inc. v. Banana Ads,
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`LLC, No. C-11-3619-YGR, 2012 U.S. Dist. LEXIS 42160 at *5-6 (finding that email service
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`satisfies due process where defendants were “involved in commercial internet activities” and
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`“rel[ied] on electronic communications to operate their businesses” and the plaintiff had “valid
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`email addresses” for defendants); The NOCO Co., Inc. v. Shenzhen Lianfa Tong Technology Co.,
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`Ltd., et al., Case No. 1:19-cv-1855-CAB at *5 (N.D. Ohio Feb. 5, 2020), (finding that “[i]n light
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`of Plaintiff’s good faith efforts to serve Defendants via physical (through the Waiver Package),
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`telephonic and electronic means, the Court finds that Plaintiff has exhausted all means consistent
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`with Defendants’ right to due process.”) As this Court held in Tapestry, e-mail service on foreign
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`defendants based in China is not prohibited by the Hague Convention and is an approved means
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`of service under Rule 4(f)(3). Tapestry, 2018 U.S. Dist. LEXIS 233014, at *4. Thus, e-mail
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`service is a proper means of service in this case as well. See Bell Northern Research, LLC v. HMD
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`America Inc., No. 1:22-cv-21035-RNS, Dkt. 45 at 3–4 (S.D. Fla. July 12, 2022)(holding that under
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`Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 10 of 12
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`similar circumstances, service was proper on Chino-E at its given emails, gms@ontim.cn and
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`cncekor@chino-e.com)
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`B.
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`Formal Hague Service Will Cause Significant Delay and Expense
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`Compliance with the Hague Convention-mandated methods of service would result in
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`unwarranted delay of these proceedings and unnecessary expense to BNR. China requires parties
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`using Hague channels to provide Chinese translations of the documents to be served, which would
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`require significant time and expense. (See Hague Conference on Private International Law
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`website, available at: https://www.hcch.net/en/states/authorities/details3/?aid=243 (last visited
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`October 14, 2022).) Once translated, the documents and request for service must be sent to the
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`Central Authority, China’s Ministry of Justice, which will effect service either by mail or through
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`a marshal. (See id.) The website of the Ministry of Justice does not provide any estimate as to the
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`amount of time necessary to effect service. (See http://en.moj.gov.cn/ (last visited October 14,
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`2022.)
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`In light of the expense involved in the use of Hague Convention procedures for service,
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`and the uncertainty regarding the amount of time necessary to effect service upon Chino-E using
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`Hague Convention procedures, BNR submits that its alternative means of service is reasonable
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`under the circumstances. As other courts have recognized, “seeking to avoid unnecessary delay
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`and expense is a valid reason to grant alternative service.” STC.UNM v. TP-Link Technologies
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`Co., Ltd., Case No. 6:19-cv-00262-ADA at *4 (W.D. Tex. June 24, 2019). China is a signatory to
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`the Hague Convention and has not expressly objected to service of process by email, website
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`posting, or social media messaging. Stat Med. Devices, Inc. v. HTL-Strefa, Inc., No. 15-20590-
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`CIV, 2015 WL 5320947, at *3 (S.D. Fla. Sept. 14, 2015) (O’Sullivan, J.) (“This Court and many
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`other federal courts have permitted service by electronic mail and determined that an objection to
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`Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 11 of 12
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`Article 10 of the Hague Convention, i.e. an objection to service through “postal channels” does
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`not equate to an express objection to service via electronic mail.”).
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`V.
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`CONCLUSION
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`For the foregoing reasons, Plaintiff respectfully requests that this Court grant the present
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`motion and authorize service pursuant to Rule 4(f)(3) upon Chino-E by e-mail to cncekor@chino-
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`E.com and gms@ontim.cn.
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`Dated: October 20, 2022
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`8
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`/s/ Jose I. Rojas
`Jose I. Rojas
`Florida Bar No.: 331546
`jrojas@rojaslawfirm.com
`Alexander F. Rojas
`Florida Bar No.: 124232
`arojas@rojaslawfirm.com
`ROJASLAW
`201 S. Biscayne Blvd., 28th Floor
`Miami, FL 33131
`Telephone: (305) 446-4000
`Facsimile: (305) 985-4146
`
`Paul Richter
`prichter@devlinlawfirm.com
`Christopher Clayton
`cclayton@devlinlawfirm.com
`Adam J. Woodward
`Florida Bar No. 1029147
`awoodward@devlinlawfirm.com
`DEVLIN LAW FIRM LLC
`1526 Gilpin Avenue
`Wilmington, Delaware 19806
`Telephone: (302) 449-9010
`Facsimile: (302) 353-4251
`
`Attorneys for Plaintiff Bell Northern
`Research, LLC
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`Case 1:22-cv-22706-RNS Document 61 Entered on FLSD Docket 10/20/2022 Page 12 of 12
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`CERTIFICATION OF PRE-FILING CONFERENCE
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`Pursuant to Local Rule 7.1(a)(3), the undersigned certify that he met and conferred with
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`counsel for Defendants regarding the issues raised in this motion via email, and Defendants do
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`not oppose the relief requested herein except for defendants HMD America Inc., HMD Global
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`Oy, Unisoc Technologies Co. Ltd., Spreadtrum Communications Usa Inc., Wingtech Technology
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`Co. Ltd., Wingtech International, Inc., Huaqin Co. Ltd., Best Buy Co., Inc., Best Buy Stores
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`L.P., Target Corp., and Walmart Inc who did not respond to requests to discuss the above
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`motion, but were provided with copies. Defendant Hon Hai Precision Industry Co., Ltd. took no
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`position on the above motion after receiving it for review. The Tinno Defendants conditioned
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`their consent on the inclusion of the following statement: “The Tinno Defendants ("Tinno") state
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`that they do not oppose this motion as it does not relate to Tinno, but further state that Tinno’s
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`non-opposition should not be taken as an admission that this type of alternative service against
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`foreign defendants is generally proper.”
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 20, 2022, a copy of the foregoing Plaintiff Bell Northern Research
`LLC’s Motion for Leave to Effect Alternative Service on Chino-E was filed electronically. Notice
`of the filing will be sent by operation of the Court’s electronic filing system to all parties indicated
`on the electronic filing receipt. Parties may access this filing through the Court’s system.
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`
`/s/ Jose I. Rojas
`Jose I. Rojas
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`9
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