Judge Gonzalez Holds that Service By E-mail on a Chinese Defendant Does Not Run Afoul of Hague Convention

Patterson Belknap Webb & Tyler LLP

Patterson Belknap Webb & Tyler LLP

On July 28, 2023, Judge Gonzalez (E.D.N.Y.) denied Defendant Shenzhen Keenray Innovations Ltd.’s (“Keenray”) motion to vacate the December 18, 2022 Order for Entry of a Preliminary Injunction ("Preliminary Injunction Order”).

Keenray argued that the Preliminary Injunction Order should be vacated because, among other things: (1) Plaintiff Sound Around, Inc. (“Sound Around”) failed to properly effectuate service of the preliminary injunction notice on Keenray and (2) the Court lacks personal jurisdiction over Keenray.

Keenray argued that because Sound Around failed to serve Defendant pursuant to the Hague Service Convention, service of process was defective. Sound Around responded that it complied with the Court’s order to serve Keenray via e-mail, and that, therefore, service of process was proper pursuant to Federal Rule of Civil Procedure 4(f)(3).

The Court explained that some courts have held that service by e-mail is not appropriate where the defendant is in a country that objects to service through postal channels, while other courts have held the opposite, and that the Court of Appeals for the Second Circuit has not ruled on the issue. The Court went on to conclude that service by e-mail is not prohibited by the Hague Convention. The Court further concluded that due process was satisfied by e-mail service because Sound Around had previously successfully corresponded with a principal officer of Keenray at the same e-mail address that it used to notify him of the preliminary injunction notice, which is also the address that is registered with Amazon.com for Keenray’s official business dealings with Amazon. In addition, Sound Around had also e-mailed Keenray’s U.S. patent counsel. Based on these same facts, the Court also found that Keenray’s argument of a lack of personal jurisdiction was not persuasive.

Case: Sound Around Inc. v. Shenzhen Keenray Innovations Ltd., No. 22-CV-6943 (HG), Dkt. No. 45 (E.D.N.Y. July 28, 2023)

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