Case 1:22-cv-22706-RNS Document 76 Entered on FLSD Docket 11/30/2022 Page 1 of 7
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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 BELL NORTHERN RESEARCH LLC’S REPLY IN SUPPORT OF ITS
`MOTION FOR LEAVE TO EFFECT ALTERNATIVE SERVICE UNDER RULE 4(f)(3)
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`Plaintiff Bell Northern Research, LLC (“Plaintiff” or “BNR”), through undersigned
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`counsel, hereby submits its Reply to Defendant Huaqin Co. Ltd.’s (“Defendant” or “Huaqin”)
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`opposition to Plaintiff’s Motion for Leave to Effect Alternative Service Under Rule 4(f)(3).
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`Case 1:22-cv-22706-RNS Document 76 Entered on FLSD Docket 11/30/2022 Page 2 of 7
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`I.
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`INTRODUCTION
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`Huaqin’s opposition brief seeks to delay its participation in this litigation, ignoring this
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`Court’s precedent and failing to distinguish the arguments or cases cited by BNR in support of its
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`request for alternate service of process. Huaqin openly acknowledges that it has actual notice of
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`this litigation, but insists that, contrary to the requirements of due process, further time-
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`consuming Hague procedures must be pursued before it is obligated to answer or otherwise
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`respond to Plaintiff’s claims. The cherry-picked case law offered by Huaqin in support of this
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`assertion is unavailing. Accordingly, this Court should reject Huaqin’s arguments and grant
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`BNR’s motion for alternative service.
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`II.
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`LEGAL STANDARDS
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`Rule 4(f)(3) permits service on a foreign defendant “by other means not prohibited by
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`international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). Service pursuant
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`to Rule 4(f)(3) is “merely one means among several which enables service of process on an
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`international defendant.” Rio Props. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002).
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`“All that is required is that the proposed service is not prohibited by international agreement and
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`such service comports with Constitutional due process, meaning that it is ‘reasonably calculated’
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`to provide the defendants notice and an opportunity to defend.” Todd Benjamin Int'l, Ltd. v. Tca
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`Fund Mgmt. Gp. Corp., No. 20-21808-Civ-Scola, 2022 U.S. Dist. LEXIS 194645, at *4 (S.D.
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`Fla. Oct. 25, 2022).
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`III. ARGUMENT
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`Service on Huaqin Under Rule 4(f)(3) Is Proper
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`A.
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`Huaqin incorrectly asserts that BNR’s request for alternative service “runs contrary to
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`Supreme Court precedent and international law. (Dkt. 74 at 2.) This argument is wrong and
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`1
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`Case 1:22-cv-22706-RNS Document 76 Entered on FLSD Docket 11/30/2022 Page 3 of 7
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`ignores the decisions by this Court exercising its discretion to grant motions for alternative
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`service under Rule 4(f)(3). Todd Benjamin Int'l, Ltd., 2022 U.S. Dist. LEXIS 194645, at *4
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`(holding that service by mail under Rule 4(f)(3) was appropriate on foreign defendants located in
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`Hague signatory countries); Abercrombie & Fitch Trading Co. v. Hcoaustraliasale, No. 21-
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`61967-Civ-Scola, 2021 U.S. Dist. LEXIS 248722, at *3–5 (S.D. Fla. Sept. 29, 2021) (authorizing
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`service by email and website posting under Rule 4(f)(3) on defendants located in Hague
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`signatory countries, including China); Barclay-Ross v. Ippolito, No. 22-21348-Civ-Scola, 2022
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`U.S. Dist. LEXIS 192534, at *4–5 (S.D. Fla. Oct. 21, 2022) (authorizing email service under
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`Rule 4(f)(3) on defendants located in Hague signatory countries). Indeed, Huaqin even ignores
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`this Court’s decision last month to grant BNR’s motion for alternative service on defendant
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`Chino-E who is also based in China. See Bell Northern Research, LLC v. HMD Am., Inc., No.
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`22-22706-Civ-Scola, 2022 U.S. Dist. LEXIS 192527, at *4–5 (S.D. Fla. Oct. 21, 2022)
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`(authorizing email service under Rule 4(f)(3) on Chino-E).
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`Instead of addressing the merits of this Court’s prior decisions, and BNR’s present
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`motion, Huaqin incorrectly relies on Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S.
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`694, 705 (1988) for the premise that the Hague Convention is “mandatory” in this case and that
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`there is “no exception” to its requirements. (Dkt. 74 at 4–5.) Huaqin’s reliance is misplaced
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`because Schlunk expressly held that the Hague Convention did “not apply, and service was
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`proper” on the defendant by serving its domestic subsidiary. 486 U.S. at 708.
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`The Hague Convention did not apply in Schlunk because that defendant could be served
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`via other means, such as service on its domestic subsidiary, even though that domestic subsidiary
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`might be required to send the summons and complaint (i.e. judicial documents) abroad to the
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`foreign corporation. Id. at 707–708. Huaqin may be served by other means as well.
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`2
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`Case 1:22-cv-22706-RNS Document 76 Entered on FLSD Docket 11/30/2022 Page 4 of 7
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`Even Huaqin’s cited cases from this District recognize that even where the Hague
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`Convention is found to apply, “this does not prohibit the Court from granting alternate service
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`under Rule 4(f)(3) if appropriate.” Int'l Designs Corp., LLC v. Qingdao Seaforest Hair Prods.
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`Co., Ltd., No. 17-60431-CIV-MORE, 2018 U.S. Dist. LEXIS 3038, at *6–7 (S.D. Fla. Jan. 4,
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`2018) (emphasis in original); Gr Opco, LLC v. Limited, No. 20-23623-Civ-
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`WILLIAMS/TORRES, 2021 U.S. Dist. LEXIS 256251, at *8 (S.D. Fla. Jan. 27, 2021) (“Having
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`summarized the parties' positions, service via the Hague Convention is not an absolute
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`prerequisite.”). Huaqin fails to cite a single case from this Court in support of its proposition that
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`service via email is violative of the Hague Convention, and instead relies on a cherry-picked
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`assortment of non-binding cases to argue BNR’s request is “not permitted by the Hague
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`Convention.” (See Dkt. 74 at 5–6). As this Court’s precedent demonstrates, this argument is
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`incorrect. Accordingly, Huaqin’s argument that the Hague Convention is mandatory in this case
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`as the only means to effect service on Huaqin (Dkt. 74 at 4–6) should be rejected.
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`B.
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`The Court Should Exercise Its Discretion and Permit Service on Huaqin
`Under Rule 4(f)(3)
`Huaqin incorrectly argues that this Court should not exercise its discretion under Rule
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`4(f)(3) because
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`“Plaintiff clearly knows Huaqin’s location in China. There is no
`showing that Huaqin is evading service . . . [a]nd there is no
`evidence that serving Huaqin under the Hague Convention would
`be particularly difficult or result in an abnormally long delay.”
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`(Dkt. 74 at 7–8.)
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`Courts have clearly stated that Rule 4(f)(3) is not merely a “last resort” to be used only
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`after other methods of service, including those under the Hague have failed; rather, Rule
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`4(f)(3) stands on equal footing with the other service methods enumerated in Rule
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`4(f). Brookshire Bros., Ltd. v. Chiquita Brands Int'l, Inc., No. 05-21962, 2007 U.S. Dist. LEXIS
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`3
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`Case 1:22-cv-22706-RNS Document 76 Entered on FLSD Docket 11/30/2022 Page 5 of 7
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`39495, at *2 (S.D. Fla. May 31, 2007) (quoting Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d
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`1007, 1015 (9th Cir. 2002)); accord AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 420, 429 (1st
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`Cir. 2015) (“By its plain terms, Rule 4(f)(3) does not require exhaustion of all possible methods
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`of service before a court may authorize service by ‘other means.’”). Thus, “[s]ervice may be
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`accomplished under Rule 4(f)(3) as long as it is (i) ordered by the court, and (ii) not prohibited
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`by an international agreement.” U.S. Commodity Futures Trading Comm'n v. Aliaga, 272 F.R.D.
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`617, 619 (S.D. Fla. 2011). “No other limitations are evident from the text.” Id. “In fact, as long
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`as court-directed and not prohibited by an international agreement, service of process ordered
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`under Rule 4(f)(3) may be accomplished in contravention of the laws of the foreign
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`country.” Fru Veg Mktg., Inc. v. Vegfruitworld Corp., 896 F. Supp. 2d 1175, 1182 (S.D. Fla.
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`2012).
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`Here, alternative service by email, as proposed by BNR, is appropriate in this case where
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`Huaqin concedes it has notice of the lawsuit and the allegations against it, the Court has already
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`granted a motion for alternative service on Chino-E to which Huaqin has not identified a single
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`error, and “all Defendants” in this case have been ordered to respond to BNR’s complaint on
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`December 19, 2022. (Dkt. 64.) Contrary to Huaqin’s arguments, BNR has sufficiently shown
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`that the Hague Convention procedures will result in unnecessary delay because of the
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`requirements for document translation and the indefinite amount of time it may take for these
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`translated documents to be sent out for service by China’s Ministry of Justice. (Dkt. 73 at 8.)
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`Huaqin is also wrong to argue that “over the past several months Plaintiff has not made
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`any efforts or exercised any diligence in effectuating proper service on Huaqin.” (Dkt. 74 at 10.)
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`Pursuant to Rule 4 of the Federal Rules of Civil Procedure, BNR sent Huaqin waiver forms after
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`filing the Complaint and engaged in a dialogue with Huaqin’s U.S. counsel about these forms.
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`4
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`Case 1:22-cv-22706-RNS Document 76 Entered on FLSD Docket 11/30/2022 Page 6 of 7
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`(Dkt. 73 at 1–4.) These were diligent efforts to have Huaqin waive service pursuant to Rule 4
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`without burdening the Court. Huaqin fails in its opposition to acknowledge as much, and instead
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`resorts to unsupported attorney argument that “Plaintiff has simply sat on its hands expecting a
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`favorable ruling.” (Dkt. 74 at 10.) Not so, as the evidence of record shows. (Dkt. 73 at 1–4.)
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`IV. CONCLUSION
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`For all the foregoing reasons, BNR respectfully requests that the Court grant its Motion
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`to Effect Alternative Service Under Rule 4(f)(3) on Defendant Huaqin.
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`Dated: November 30, 2022
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` Respectfully submitted,
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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 Woodward
`Florida Bar No. 1029147
`DEVLIN LAW FIRM LLC
`1526 Gilpin Avenue
`Wilmington, Delaware 19806
`Telephone: (302) 449-9010
`Facsimile: (302) 353-4251
`Email:awoodward@devlinlawfirm.com
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`Attorneys for Plaintiff Bell Northern
`Research, LLC
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`Case 1:22-cv-22706-RNS Document 76 Entered on FLSD Docket 11/30/2022 Page 7 of 7
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 30, 2022, I caused the foregoing to be electronically
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`filed with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
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`registered participants.
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`/s/ Jose I. Rojas
` Jose I. Rojas
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`6
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