Last month a U.S. district court asked, “When service of process absolutely, positively has to be effected on a Taiwanese defendant pursuant to Federal Rule of Civil Procedure 4(f)(2)(C)(ii), is Federal Express enough?”
The case, SignalQuest v. Chou, involved allegations of U.S. patent infringement. After filing the Complaint and failing to convince defendant’s counsel to accept service of process on defendant’s behalf, plaintiff’s counsel filed a request for consent to serve Mr. Chou at his business in Taiwan by FedEx.
Federal Rule of Civil Procedure (FRCP) Rule 4 allows process to be served on a foreign defendant by any internationally agreed means of service, such as means permitted by the Hague Convention, but Taiwan is not a party to most international agreements, including the Hague Convention.
Rule 4 also authorizes service by letters rogatory or pursuant to the foreign country’s laws governing domestic service of process. However, the letters rogatory process takes months to complete, as it requires the assistance of courts and government offices in both countries. Service of foreign process pursuant to Taiwan’s laws is no less cumbersome, because Taiwan’s law requires service to be made by the clerk of Taiwan’s court.
So the plaintiff turned to FRCP 4(f)(2)(C)(ii), which permits process to be served on a foreign defendant – unless prohibited by the foreign country’s law – by mail that the clerk addresses and sends, which requires a return receipt. Upon plaintiff’s request, the U.S. clerk mailed the summons and complaint to the defendant’s office in Taiwan by FedEx and one of defendant’s employees signed the delivery receipt.
The defendant then moved to dismiss the action for insufficient service of process, claiming service by FedEx is not permitted under Taiwan law, so it must be deemed prohibited, for purposes of FRCP 4(f)(2)(C)(ii). The court disagreed, holding service is not prohibited under foreign law unless it is expressly prohibited and it found the service by FedEx was proper.
Incidentally, the plaintiff also could have turned to FRCP 4(f)(3), which permits process to be served “by other means not prohibited by international agreement” (upon court order). It should be noted that courts are not unanimous in approving fast-track solutions to international service of process (See Emine v. Aten, in which service against a Taiwanese defendant by international mail was rejected). However, numerous Western courts have approved expedited solutions, allowing international service by e-mail, facebook and by service on the foreign company’s U.S. counsel.
As a practical matter, service by FedEx may have been an acceptable solution for SignalQuest, where plaintiff was seeking only a declaratory judgment of non-infringement in the U.S., but a plaintiff should think twice before attempting such a tactic in a case where enforcement may be required in the defendant’s country. In Taiwan, a foreign judgment cannot be enforced until it has been recognized by a Taiwan court and there’s a fair likelihood Taiwan courts may refuse to recognize any judgment where service was made by mail, e-mail or other unorthodox means.
Finally, defendants should be reminded to never ignore attempted service of process, regardless of how improper it appears, as the plaintiff may then take defendant’s default and obtain a default judgment, which may be near impossible to overturn. As explained emphatically in the sobering case of Standard Microsystems v. Winbond Electronics, best practice dictates that the defendant should always file a motion to quash the attempted service.
If you require legal assistance, please contact our Taiwan Service of Process Attorneys.