The Kyjen Co. v. The Individuals, Corps., LLCs, Partnerships, and Unincorporated Assocs. Identified on Schedule A to the Complaint, No. 23 Civ. 612 (S.D.N.Y. Mar. 2, 2023) [click for opinion]

On January 24, 2023, Plaintiff, the Kyjen Company, LLC ("Kyjen"), filed an application for a temporary restraining order and preliminary injunction, seeking to enjoin eighty individuals, corporations, limited liability companies, partnerships, and unincorporated associations ("Defendants") from the manufacture and sale of certain allegedly infringing products. In conjunction with that application, Kyjen requested permission to use email and online publications to serve Defendants.

Kyjen argued that it was unable to serve all eighty defendants pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (the "Hague Convention") because it could not find physical addresses for certain defendants located in China, a signatory. The court agreed in part, and authorized electronic service for some of the defendants.

The court explained that service of process on foreign defendants is governed by Rule 4(f) of the Federal Rules of Civil Procedure. Rule 4(f) allows for service on foreign defendants by any internationally agreed means of service that is reasonably calculated to give notice. Where, as here, Defendants were believed to be located in China—a signatory to the Hague Convention—Rule 4(f) required that Defendants be served pursuant to the Hague Convention.

The Hague Convention has been interpreted to prohibit service by email and online publications on litigants located in China. However, the Hague Convention does not apply where the address of the person to be served is not known to the party serving process. A person's address is considered "not known" if the serving party exercised "reasonable diligence" in attempting to discover a physical address for service of process, but was unsuccessful in doing so.

The court accordingly analyzed the efforts made by Kyjen to locate physical addresses for all eighty defendants. The court found two defendants were located in non-signatory countries, so electronic service was not prohibited by the Hague Convention. The court then found eleven instances where, despite an order requiring Defendants' commerce platform to provide physical addresses for Defendants, that information was not produced. Thus, as there was no other means to obtain physical addresses of those eleven defendants, "reasonable diligence" was satisfied, and electronic service of process was permitted.

Of the remaining sixty-seven defendants, Kyjen argued it could not confirm that Defendants could be reached at the physical addresses provided by the commerce platform. Kyjen stated it conducted online investigations of the addresses provided, engaged third parties to visit those addresses, attempted deliveries, and called phone numbers where available. The court found that in thirty-two cases, Defendants could not be reached at the addresses provided by the platforms. The addresses were non-existent or inaccurate, access to the addresses was restricted or the addresses were too remote, Defendants could not be located at the addresses, and postal delivery was not complete. Therefore, the court granted electronic service for these thirty-two defendants. The court denied alternative service for the remaining thirty-five defendants.

The court found that for four defendants, Kyjen only made one attempt to reach them by phone, which was insufficient to meet the "reasonable diligence" standard as courts have repeatedly held multiple modes of attempted contact are needed. For the other thirty-one defendants, Kyjen did not proffer any information regarding any effort to locate physical addresses. Therefore, the court denied electronic service for thirty-five of the eighty defendants where Kyjen did not show "reasonable diligence."

Chehak Gogia of the New York office contributed to this summary.