Jian Zhang v. Baidu.com Inc.

• Decision Date: 25 March 2013
• Docket Number: No. 11 Civ. 3388(JMF).,11 Civ. 3388(JMF).
• Citation: 932 F.Supp.2d 561
• Parties: Jian ZHANG, et al., Plaintiffs, v. BAIDU.COM INC. and People's Republic of China, Defendants.
• Court: U.S. District Court — Southern District of New York

932 F.Supp.2d 561

Jian ZHANG, et al., Plaintiffs,

v.BAIDU.COM INC. and People's Republic of China, Defendants.

No. 11 Civ. 3388(JMF).

United States District Court, S.D. New York.

March 25, 2013.

Stephen N. Preziosi, Law Office of Stephen N. Preziosi P.C., New York, NY, for Plaintiffs.

Carey Richard Ramos, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Jacob J. Waldman, Akin Gump Strauss Hauer & Feld LLP, New York, NY, for Defendants.

OPINION AND ORDER

JESSE M. FURMAN, District Judge:

Plaintiffs, self-described “promoters of democracy in China through their writings, publications and reporting of pro-democracy events,” claim in this suit that the People's Republic of China and Baidu.com Inc. (“Baidu”), a Chinese Internet search engine service,¹ have conspired to prevent their “pro-democracy political speech” from appearing in Baidu's search engine results. (Compl. ¶¶ 7–8, 10–12, 14).² Whatever the merits of their claims, the question presented here is whether Defendants have been properly served with the Complaint, as China declined to effect service pursuant to Article 13 of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361 (the “Hague Convention” or “Convention”), on the ground that service “would infringe its sovereignty or security.” Baidu (having entered a special appearance for the limited purpose of contesting service) moves to dismiss the Complaint pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficient service of process. Plaintiffs cross-move for entry of default judgment. China has not appeared in the action.

For the reasons stated below, the Court concludes that Baidu and China have not been properly served. Accordingly, Plaintiffs' motion for default judgment is denied and Baidu's motion to dismiss is granted. Nevertheless, the Court stays dismissal of the case against Baidu for thirty days to give Plaintiffs an opportunity to move for an alternative means of service. By the same date, Plaintiffs shall show cause for why the case should not be dismissed as to China.

BACKGROUND

Plaintiffs' Complaint, filed on May 18, 2011, alleges violations of Title 42, United States Code, Sections 1981, 1983, and 1985; New York Civil Rights Law Sections 40 and 40–c; New York Executive Law Section 296(2); New York City Administrative Code Section 8–107(4)(a); and New York State Constitution Article 1, Section 11. Approximately one year after filing the Complaint, on April 25, 2012, Plaintiffs filed two USM–94 acknowledgment of service forms (Docket Nos. 2–3), which are forms provided by the United States Department of Justice to request service of documents abroad pursuant to the Hague Convention. The two forms (one for each Defendant) indicate that Plaintiffs attempted to effect service of the Complaint on Defendants through the Chinese Ministry of Justice, the designated Central Authority for China under the Hague Convention. Each form, however, is accompanied by a certificate stating that the Chinese Ministry returned Plaintiffs' request for service because “execution of the request would infringe the sovereignty or security of the People's Republic of China (Article 13).”

On the same day they filed the USM–94 forms, Plaintiffs took steps to obtain a default judgment against Defendants. Although the Clerk of this Court initially issued a “Certificate of Default,” it vacated the Certificate on April 26, 2012, as “entered in error” (presumably because China had declined to effect service under the Hague Convention). (Docket No. 6). Plaintiffs allege that they then attempted to serve the Summons and Complaint on Defendants by sending the documents via Federal Express. (Preziosi Affirmation ¶¶ 30–31, July 23, 2012 (Docket No. 9)). China refused to accept the package sent to its Ministry of Justice because the Ministry requires authorization in advance for deliveries, and Baidu refused to accept delivery because the package was not addressed to a specific person. ( Id. ¶¶ 32–34) A second package containing the Summons and Complaint was successfully delivered to Baidu's Beijing offices, where a Baidu employee signed for them. ( Id. ¶¶ 35–36). Thereafter, Plaintiffs filed a motion in this Court for entry of a default judgment. (Docket No. 7). A few months later, after entering a special appearance for the limited purpose of contesting the sufficiency of service of process (Docket Nos. 11–12), Baidu opposed Plaintiffs' motion for default judgment and moved to dismiss the Complaint for insufficient service of process (Docket Nos. 14–17). China has not appeared in the action.

APPLICABLE LAW

When, as here, “a defendant moves to dismiss under Rule 12(b)(5), the plaintiff bears the burden of proving adequate service.” Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir.2010) (quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 298–99 (2d Cir.2005)) (internal quotation mark omitted). Service of a summons and complaint in a federal lawsuit is governed by Rule 4 of the Federal Rules of Civil Procedure. To the extent relevant here, Rule 4(j)(1) provides that a foreign state, such as China, “must” be served in accordance with Title 28, United States Code, Section 1608. Section 1608, in turn, authorizes four ways to serve a foreign state. In pertinent part, it provides that service “shall be made upon a foreign state” (1) by “special arrangement”; (2) “in accordance with an applicable international convention,” such as the Hague Convention; (3) if service cannot be made in either of these ways, by mail “to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned”; or (4) if service cannot thus be made within thirty days, by sending copies to the American Secretary of State to send to the foreign nation by diplomatic channels. 28 U.S.C. § 1608.

Under Rule 4(h), a foreign corporation must be served “in a judicial district of the United States ... or at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery.” Rule 4(f)(1), in turn, permits service outside the United States “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention.” Subject to enumerated restrictions, Rule 4(f)(2) permits alternative service “if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice.” Finally, Rule 4(f)(3) provides that service on a foreign litigant can be effected “by other means not prohibited by international agreement, as the court orders.” As a general matter, “ ‘[t]he only limitations on Rule 4(f)(3) are that the means of service must be directed by the court and must not be prohibited by international agreement.’ ” Advanced Aerofoil Techs., AG v. Todaro, No. 11 Civ. 9505(ALC)(DCF), 2012 WL 299959, at *1 (S.D.N.Y. Jan. 31, 2012) (quoting Ehrenfeld v. Salim a Bin Mahfouz, No. 04 Civ. 9641(RCC), 2005 WL 696769, at *2 (S.D.N.Y. Mar. 23, 2005)).

As both the United States and China are signatories to the Hague Convention, that pact governs service of process by transmittal of documents abroad in this case. See, e.g., Pac. Worldwide, Inc. v. Ample Bright Dev., Ltd., No. 11 Civ. 107(LTS)(HBP), 2011 WL 6224599, at *2 (S.D.N.Y. Dec. 14, 2011); see also Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 705, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988) (dictum) (“Compliance with the Convention is mandatory in all cases to which it applies....”); Hague Convention art. 1 (“The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”); Fed.R.Civ.P. 4 advisory committee's note (“Use of the Convention procedures, when available, is mandatory if documents must be transmitted abroad to effect service.”). The Hague Convention requires signatory countries to establish a Central Authority to receive requests for service of documents from other countries and to serve those documents. See Hague Convention arts. 2–6. In addition, Article 10 allows for service by other means, such as service “by postal channels” or through judicial officers, “[p]rovided the State of destination does not object.” Id. art. 10; see Burda Media, Inc., 417 F.3d at 300 (listing “several alternate methods of service” under the Hague Convention).

Several other provisions of the Convention are relevant here. First and foremost, under Article 13 of the Convention, a country “may refuse to comply” with a request for service “if it deems that compliance would infringe its sovereignty or security.” Hague Convention art. 13. Second, Article 14 provides that “[d]ifficulties which may arise in connection with the transmission of judicial documents for service shall be settled through diplomatic channels.” Id. art. 14. Finally, to the extent relevant here, Article 15 sets forth certain conditions that must be met before a default judgment can be entered against a defendant served pursuant to the Convention. Id. art. 15. Among other things, that provision states that a judge may give judgment, “even if no certificate of service or delivery has been received,” if the document was transmitted pursuant to the Convention, a period of time not less than six months has elapsed, and “no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities.” Id.

DISCUSSION

Although Plaintiffs do not concede the point ( see, e.g., Preziosi Affirmation ¶ 2), there is plainly no merit to any suggestion that Defendants in this case were properly served under the Hague Convention, as China expressly invoked ...