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The Noco Company, Inc. v. Shenzhen Dika Na'er E-Commerce Co., Ltd.

United States District Court, N.D. Ohio, Eastern Division

November 22, 2017

THE NOCO COMPANY, INC., Plaintiff,
v.
SHENZEN DIKA NA'ER E-COMMERCE CO., LTD., Defendant.

          ORDER

          CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff, The Noco Co., Inc.'s Motion to Leave to Serve Defendant Through Alternative Means (ECF # 6). For the following reasons, the Court grants Plaintiff's Motion.

         On October 30, 2017, Plaintiff filed its lawsuit against Defendant for Patent Infringement of Plaintiff's patented battery jump starter, the GENIUS BOOST. Defendant is a Chinese company that sells its allegedly infringing product through Amazon. Before initiating its suit, Plaintiff attempted to ascertain a physical address, email address or other contact information by searching Defendants website, Amazon, the United States Patent and Trademark Office (USPTO) ICANN, Google and other social media platforms, including Facebook, all to no avail.

         Plaintiff attempted physical and electronic service of the Waiver of the Service of Summons and Complaint. Plaintiff attempted service on Defendant's website email. Defendant responded that it did not accept electronic email service but demanded service through alternatives under applicable federal law or judge-authorized means. On October 31, 2017, Plaintiff requested from Defendant the name and address of Defendant's representative for purposes of effectuating service. As of November 15, 2017, no response has been given.

         On October 30, 2107, counsel for Plaintiff submitted to Defendant through Defendant's web-based inquiry form, information concerning the lawsuit and counsel's contact information. Plaintiff received a thank you message acknowledging receipt of the inquiry. As of November 15, 2017, no further response has been given. The same occurred on Defendant's Facebook page. Plaintiff attempted the same service through Amazon's Message Center with no response. Plaintiff discovered the address of a correspondent for Defendant with the USPTO and an email address. Plaintiff attempted service via both physical delivery to the address by Federal Express and electronic service. Both were delivered on November 2, 2017, but as of November 15, 2017, no response has been given. Plaintiff attempted delivery through a law firm that was listed as correspondent in a transaction for Defendant but received a response that the firm no longer represents Defendant in patent related matters. The firm indicated it would forward the lawsuit information to Defendant. Plaintiff delivered the lawsuit information to a website for Defendant listed at Global Sources but that address was not Defendant's. Plaintiff has not been able to discover any valid physical address for Defendant.

         The USPTO has identified Defendant as the owner of the Suaoki trrademark and lists an address which Plaintiff attempted to deliver the lawsuit documents but came back as undeliverable due to an incorrect address. Therefore, Plaintiff has informed the Court it is unable to locate a physical address for Defendant. Plaintiff asks leave of Court to serve defendant by electronic service to the Suaoki email address and Facebook messenger. Federal Rule of Civil Procedure 4(h) governs service of a corporation, partnership or association and reads:

Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the defendant; or
(2) 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 under (f)(2)(C)(i).

Fed. R. Civ. P 4(f) governs service on foreign parties. Rule 4(f) reads:

         Serving an Individual in a Foreign Country.

         Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served at a place not ...


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