Tracfone Wireless, Inc. v. Unlimited PCS Inc., 279 F.R.D. 626 (S.D. Fla. 2012)

Plaintiff’s complaint, filed in the District Court for the Southern District of Florida, alleged that Defendants’ business enterprise involved the illegal trafficking of devices used to unlock or reflash its federally trademarked prepaid wireless telephones.  According to the complaint, one of the four defendants, Technopark, is a Hong Kong corporation that regularly transacts business in the United States, including Florida, but does not have any registered agent for service of process in Florida, or any other state.  Plaintiff, Tracfone, thus moved for entry of an order (a) directing the Clerk to dispatch the complaint and summons to the Hong Kong Central Authority in order to serve Technopark pursuant to Rule 4(f)(1) of the Federal Rules of Civil Procedure, which provides an individual may be served in a foreign country under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”), and (b) permitting Tracfone to serve Technopark directly pursuant to Rule 4(f)(2)(C)(ii), which authorizes serving an individual in a foreign country “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” 

The court granted Tracfone’s motion to direct the clerk to issue a request under the Hague Service Convention for the Hong Kong Central Authority to effect service on Technopark pursuant to Rule 4(f)(1).  First, the court confirmed that the Hague Service Convention continued to be applicable to Hong Kong after the transfer of sovereignty of Hong Kong to China in 1997.  Second, the court agreed with Tracfone’s position that the Hague Service Convention required the court’s assistance in initiating the process of effectuating service, as it requires that the request for service of process must come from “[j]udicial officers, officials or other competent persons.” 

The court also granted Tracfone’s motion, pursuant to Rule 4(f)(2)(C)(ii), to dispatch a copy of the summons and complaint directly to Technopark by international mail and FedEx. 

First, the court held that service of legal documents could be made by mail under Article 10(a) of the Hague Service Convention, which permits service by mail unless the country has objected to this method.  The court found that the Second, Ninth and Seventh Circuits have agreed that service by mail is permissible under the Hague Service Convention, and also found that the United States Department of State, whose views should be given special weight in construing treaties, supported this position. 

Second, the court held that service by postal channel may be effectuated in Hong Kong pursuant to Article 10(a) of the Hague Service Convention based on both a document submitted by Tracfone stating that Hong Kong has “no objection” with respect to Article 10(a) of the Hague Service Convention as well as other decisions that found that Hong Kong had not objected to service of process by mail in its jurisdiction. 

Third, the court also held that FedEx may be used as a permissible postal channel to complete service consistent with Article 10(a), stating that “numerous courts have recognized that FedEx (or other commercial mail couriers) are permissible ‘postal channels’ through which to complete service consistent with Article 10(a) of the Hague Service Convention.” 

Thus, the court directed the clerk of the court to serve Technopark by sending the summons, complaint and related documents (1) via international express mail to the Chief Secretary of Administration of Hong Kong Special Administrative Region; (2) via U.S.P.S. international express mail to Technopark, with return receipt requested; and (3) via FedEx to Technopark, with return receipt requested.  The court also ordered Technopark to respond within 21 days after receipt.