OnBrand v. Tuoze Electronic Technology Go., Limited

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ONBRAND, Case No. 24-cv-02325-BAS-KSC 11 Plaintiff, ORDER: 12 v. (1) DENYING PLAINTIFF’S TRO 13 TUOZE ELECTRONIC TECHNOLOGY APPLICATION; AND GO., LIMITED, 14 (2) GRANTING PLAINTIFF’S Defendant. MOTION FOR ALTERNATIVE 15 SERVICE AND REQUEST TO 16 EXTEND TIME 17 (ECF Nos. 8, 18) 18 19 20 21 Pending before the Court are two motions filed by Plaintiff OnBrand: (1) an Ex Parte 22 Motion for Temporary Restraining Order (“TRO”) (ECF No. 8); and (2) a Motion 23 requesting authorization to serve Defendant Tuoze Electronic Technology Go., Limited 24 (“Defendant”) by alternative means pursuant to Federal Rule of Civil Procedure (“Rule”) 25 4(f)(3) and for an extension of time to complete service (ECF No. 18). The Court first 26 addresses the TRO Application filed on February 18, 2025. (ECF No. 8.) 27 The Court remains unconvinced that extraordinary relief such as an ex parte TRO is 28 appropriate. Generally, a TRO is “an extraordinary remedy that may only be awarded upon 1 a clear showing that the plaintiff is entitled to such relief.” See Winter v. Nat. Res. Def. 2 Council, Inc., 555 U.S. 7, 20 (2008). For a TRO to be issued without notice, the burden is 3 even higher, and “courts have recognized very few circumstances justifying the issuance 4 of an ex parte TRO.” Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 5 2006). 6 Here, Plaintiff has been unable to complete service in the past six months, albeit with 7 reasonable diligence. Plaintiff alleges Defendant maintains an address in Hong Kong. (See 8 First Amended Complaint (“FAC”) ¶ 4.) Hong Kong is a “special administrative region of 9 the People’s Republic of China, which has advised the United States that the Hague Service 10 Convention is in effect in Hong Kong.” Facebook, Inc. v. Banana Ads, LLC, No. C-11- 11 3619 YGR, 2012 WL 1038752, at *2 (N.D. Cal. Mar. 27, 2012). Plaintiff previously 12 requested ninety (90) and one hundred and fifty (150) day extensions based on the 13 anticipated timeframe required for effectuating service in China under the Hague Service 14 Convention. (ECF Nos. 13, 14.) The Court granted the first request and denied the second 15 as moot, directing Plaintiff to show good cause for any further extension. (ECF No. 15.) 16 Plaintiff moved for an additional seventy (70) days to effectuate service (ECF No. 16), and 17 the Court granted the request in light of Plaintiff’s diligence but also cautioned that any 18 future requests would be subject to a more stringent showing of good cause (ECF No. 17). 19 Given the lapse of time, the Court is concerned that the facts and circumstances 20 offered to justify an ex parte TRO may have changed or grown stale. Additionally, the 21 Court retains inherent authority “to manage [its] own affairs so as to achieve the orderly 22 and expeditious disposition of cases.” Link v. Wabash R.R., 370 U.S. 626, 630–31 (1962). 23 Therefore, the Court denies without prejudice Plaintiff’s Ex Parte TRO Application. See 24 Reno Air Racing Ass’n, 452 F.3d at 1131; see also Link v. Wabash R.R., 370 U.S. 626, 25 630–31. If Plaintiff completes service, it may renew its request for a TRO. But if 26 Defendant does not respond to this lawsuit, Plaintiff will need to seek a default judgment. 27 With respect to Plaintiff’s second Motion, Plaintiff seeks leave to serve Defendant 28 by electronically publishing a link to the “Summons, the Complaint, the Temporary 1 Restraining Order, and other relevant and necessary court filings on a website and by 2 sending a message to the Amazon.com [a]ccount [of Defendant] . . . that includes a link to 3 said website.” (ECF No. 18 at 1:26–2:3.) Pursuant to Local Rule 4.1(a), Plaintiff also 4 moves for an extension of time of thirty (30) days to effectuate service. (Id. at 3:26–27.) 5 Rule 4(f) governs the service of process on an individual in a foreign country. Rule 6 4(f)(1) explicitly authorizes service under the terms of the Hague Convention. The record 7 shows that Plaintiff has diligently pursued service through the Hague Convention; 8 however, the authorities in Hong Kong were unable to serve Defendant after multiple 9 attempts at its listed office address. (Declaration of David Stewart (“Stewart Decl.”) ¶¶ 3– 10 12, ECF No. 18-1, Ex. 1.) Plaintiff therefore moves under Rule 4(f)(3), which provides for 11 service “by other means not prohibited by international agreement, as the court orders.” 12 Rule 4(h)(2) applies the above rule to corporations, partnerships, and associations. 13 The Court concludes that Plaintiff’s proposed method of service is not prohibited by 14 international agreement and comports with constitutional due process as it is “reasonably 15 calculated, under all the circumstances, to apprise interested parties of the pendency of the 16 action and afford them an opportunity to present their objections.” Mullane v. Cent. 17 Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). “Under Rule 4(f)(3), courts in the 18 Ninth Circuit have authorized alternate methods of service, including delivery by online 19 messaging systems, to defendants who are difficult to locate.” Commodity Futures Trading 20 Comm’n v. Debiex, No. CV-24-00117-PHX-DLR, 2024 WL 2375381, at *1 (D. Ariz. Mar. 21 11, 2024) (collecting cases); see also Rubies Costume Co. v. Yiwu Hua Hao Toys Co., Ltd., 22 No. 18-cv-1530-RAJ, 2019 WL 6310564, at *3 (W.D. Wash. Nov. 25, 2019) (citing cases 23 authorizing service on defendants located in China via email and/or online messaging 24 systems); id. at *4 (authorizing service of process on defendants located in China via email 25 and through their Amazon storefronts); Padded Spaces LLC v. Weiss, No. C21-0751JLR, 26 2022 WL 1423701, at *3 (W.D. Wash. May 5, 2022) (concluding that service via 27 defendant’s Amazon storefront messaging system was permissible). 28 1 Here, Plaintiff is not able to identify a valid e-mail address for Defendant, but alleges 2 Defendant operates an Amazon storefront under the name “TOUZEDIRECT,” through 3 which it conducts business. (See FAC ¶¶ 18–45.) Consistent with the applicable case law, 4 the Court concludes that the Hague Convention and Rule 4(f)(3) do not prohibit service of 5 process on Defendant via its Amazon storefront messaging system. Moreover, service 6 through this method is reasonably calculated to apprise Defendant of this action, and thus 7 satisfies due process, because Defendant conducts business through Amazon. See Padded 8 Spaces LLC, 2022 WL 1423701 at *3 (finding service via Amazon.com’s storefront 9 messaging system satisfied due process because defendant conducted its business through 10 Amazon and therefore likely used the communication methods associated with the 11 storefront.) 12 Additionally, Plaintiff has met the more stringent showing of good cause required 13 by the Court in its prior Order (ECF No. 17) to extend the deadline for service. Plaintiff 14 has diligently attempted service through the Hague Convention, and the delay of service is 15 not attributable to a lack of reasonable effort on its part. (See Stewart Decl. ¶¶ 3–12.) 16 While Rule 4(m) generally provides the applicable time limit within which service must be 17 effected, it “does not apply to service in a foreign country[.]” See also Lucas v. Natoli, 18 936 F.2d 432, 432 (9th Cir. 1991). Accordingly, the Court grants Plaintiff’s request for an 19 extension of time of thirty (30) days to effectuate service on Defendant. 20 In sum, the Court DENIES Plaintiff’s Ex Parte TRO Application (ECF No. 8) and 21 GRANTS Plaintiff’s Motion for Alternative Service and for an Extension of Time (ECF 22 No. 18). Given the Court’s denial of Plaintiff’s Ex Parte TRO Application, Plaintiff shall 23 have leave to complete service of the Summons (ECF No. 3) and the FAC (ECF No. 4) and 24 to file proof of service on the docket no later than October 6, 2025. As previously 25 discussed, if Plaintiff completes service, it may renew its request for a TRO; however, the 26 Court will not entertain such a request ex parte absent the requisite showing under Rule 27 65(b)(1) and Local Rule 83.3(g)(2). Moreover, if Defendant does not respond to this 28 1 || lawsuit, Plaintiff will need to seek entry of default and thereafter pursue a default judgment 2 under Rule 55. 3 IT IS SO ORDERED. 4 ~ 5 DATED: September 5, 2025 yatta Bihar 6 H n. Cynthia Bashant, Chief Judge United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28