Reported / Citable
Background
NXP USA sued PTW America, PTW Asia, and MLS Corp. over an alleged breach of a contract to purchase semiconductor equipment. NXP alleges that PTW did not perform because MLS Corp., a South Korean entity, breached a separate agreement to fund the acquisition and accept delivery of the equipment.
NXP asked MLS Corp. to waive service through counsel that represented MLS Corp. in a related Western District of Texas case, but MLS Corp. declined. NXP then translated the summons and complaint into Korean and attempted Hague Convention service at the address in the disputed contract, which MLS Corp.’s CEO had confirmed, and at another address found online. Both attempts failed.
The Court’s Holding
Judge Robert Pitman granted NXP’s unopposed motion for alternate service under Federal Rules of Civil Procedure 4(f)(3) and 4(h)(2). The court held that the Hague Service Convention did not apply because, after NXP’s unsuccessful attempts at its only two available physical addresses, MLS Corp.’s address was unknown.
The court authorized service by email on MLS Corp.’s CEO, Joo Kim, and on Dominique Williams and Diren Singhe of the Sul Lee Law Firm. The firm had recently communicated with NXP’s counsel on MLS Corp.’s behalf, and NXP showed that the attorneys’ email addresses were valid. Although the evidence for Kim’s email address was more than two years old, the court concluded that service on Kim together with the company’s counsel was reasonably calculated to provide notice and satisfied due process.
Key Takeaways
- A foreign corporation may be served by court-ordered alternate means under Rules 4(f)(3) and 4(h)(2) when the method is not barred by international agreement and is reasonably calculated to give notice.
- The Hague Service Convention does not apply when the defendant’s address is unknown.
- Email service on known counsel and a corporate CEO may satisfy due process where counsel’s active representation and valid email addresses support reliable notice.
Why It Matters
The order illustrates that Hague Convention service is not the exclusive path for serving a foreign defendant when the defendant cannot be located at available physical addresses. It also shows the importance of evidence tying the proposed email recipients to the defendant and demonstrating that the addresses remain functional.
Service was deemed complete upon transmission to all three authorized email addresses, subject to NXP filing proof of compliance within ten days.