American Patents LLC v. Mediatek, Inc. et al

Western District of Texas, txwd-6:2018-cv-00339

REPLY to Response to Motion, filed by Lenovo (Shanghai) Electronics Technology Co. Ltd., Lenovo Group Ltd., re 44 MOTION to Dismiss for Lack of Jurisdiction, and Improper Venue filed by Defendant Lenovo (Shanghai) Electronics Technology Co. Ltd., Defendant Lenovo Group Ltd.

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7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION AMERICAN PATENTS LLC, Plaintiff, v. MEDIATEK INC., MEDIATEK USA INC., CIVIL ACTION NO. 6:18-CV-339-ADA BROADCOM PTE. LTD., BROADCOM CORPORATION, LENOVO (SHANGHAI) ELECTRONICS TECHNOLOGY CO. LTD., LENOVO GROUP, LTD., NXP SEMICONDUCTORS N.V., NXP B.V., NXP USA, INC., QUALCOMM INCORPORATED and QUALCOMM TECHNOLOGIES, INC., Defendants. REPLY IN SUPPORT OF SPECIALLY APPEARING DEFENDANTS LENOVO (SHANGHAI) ELECTRONICS TECHNOLOGY CO., LTD. AND LENOVO GROUP LTD.'S MOTION TO DISMISS FOR IMPROPER SERVICE OF PROCESS, LACK OF PERSONAL JURISDICTION, AND IMPROPER VENUE 7 TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 II. PLAINTIFF FAILS TO ESTABLISH PERSONAL JURISDICTION ...............................1 A. The Lenovo Defendants Do Not Place the Accused Products into the Stream of Commerce ...............................................................................................1 B. Lenovo U.S. Is Not the "Agent" of the Lenovo Defendants ...................................4 C. The Lenovo Defendants Have No Contacts With the U.S. as a Whole That Give Rise to Plaintiff's Cause of Action..................................................................6 D. Asserting Personal Jurisdiction Would Be Unfair and Unreasonable .....................6 E. Plaintiff Is Not Entitled to Any Jurisdictional Discovery ........................................7 III. PLAINTIFF HAS NOT EFFECTED SERVICE OF PROCESS ........................................8 A. The Hague Convention Applies to Preempt the Texas Service Statute, Because Service Under the Statute Cannot Be Complete Without Mailing ............8 B. Plaintiff Has Expended No Effort Whatsoever to Effect Service Properly, and Should Not Be Rewarded With Alternative Means of Service .........................9 -i- 7 TABLE OF AUTHORITIES Page(s) Cases AFTG-TG, LLC v. Nuvoton Tech. Corp. 689 F.3d 1358 (Fed. Cir. 2012)..................................................................................................3 Altova GmbH et al v. Syncro Soft SRL No. 1:17-cv-11642-PBS, Dkt. 9 (D. Mass. Jan. 29, 2018) ......................................................10 Auto Wax Co. v. Kasei Kogyo Co. No. A 00 CA 531 SS, 2001 U.S. Dist. LEXIS 24023 (W.D. Tex. Sept. 26, 2001) ........................................................................................................7 Bank of Canton, Ltd. v. Republic Nat'l Bank 509 F. Supp. 1310 (S.D.N.Y. 1980)...........................................................................................2 Bar Grp., LLC v. Bus. Intelligence Advisors, Inc. 215 F. Supp. 3d 524 (S.D. Tex. 2017) .......................................................................................8 Beverly Hills Fan Co. v. Royal Sovereign Corp. 21 F.3d 1558 (Fed. Cir. 1994)....................................................................................................4 Canatelo, LLC v. AXIS Commc'ns AB 953 F. Supp. 2d 329 (D.P.R. 2013)............................................................................................4 Catalyst Medium Four, Inc. v. CardShark, LLC No. 14-CA-1007-SS, 2015 U.S. Dist. LEXIS 38729 (W.D. Tex. Mar. 26, 2015) ........................................................................................................8 In re Chinese-Manufactured Drywall Prods. Liab. Litig. 168 F. Supp. 3d 918 (E.D. La. 2016) .........................................................................................6 Codigo Music, LLC v. Televisa, S.A. de C.V. No. 15-CIV-21737 2017 U.S. Dist. LEXIS 160747 (S.D. Fla. Sept. 29, 2017) ......................10 Duarte v. Michelin N. Am., Inc., No. C-13-CV-50 2013 U.S. Dist. LEXIS 73862 (S.D. Tex. May 3, 2013) .......................................................1, 9 In re Enter. Rent-A-Car Wage & Hour Empl. Practices Litig. 735 F. Supp. 2d 277 (W.D. Pa. 2010), aff'd, 683 F.3d 462 (3d Cir. 2012) ...............................6 ETS-Lindgren, Inc. v. MVG, Inc. No. 15-CA-00456-SS, 2015 U.S. Dist. LEXIS 149906 (W.D. Tex. Nov. 4, 2015) ..........................................................................................................8 -ii- 7 Flava Works, Inc. v. Doe, No. 12 C 5844 2013 U.S. Dist. LEXIS 57588 (N.D. Ill. Apr. 19, 2013) .........................................................10 Hageman v. Corporación EG, S.A. de C.V. No. SA:14-CV-976-DAE, 2015 U.S. Dist. LEXIS 41314 (W.D. Tex. Mar. 31, 2015) ........................................................................................................4 Halvorssen v. Simpson 328 F.R.D. 30 (E.D.N.Y. 2018) ...............................................................................................10 Hildebrandt v. Indianapolis Life Ins. Co., No. 3:08-CV-1815-B 2009 U.S. Dist. LEXIS 12048 (N.D. Tex. Feb. 17, 2009) .........................................................5 Int'l Transactions, Ltd. v. Embotelladora Agral Regionmontana SA de CV 277 F. Supp. 2d 654 (N.D. Tex. 2002) ......................................................................................9 J. McIntyre Mach., Ltd. v. Nicastro 564 U.S. 873 (2011) ...................................................................................................................1 James Avery Craftsman, Inc. v. Sam Moon Trading Enters. No. 16-cv-00463 2018 U.S. Dist. LEXIS 219083 (W.D. Tex. July 5, 2018) ............................9 Jazini by Jazini v. Nissan Motor Co. 148 F.3d 181 (2d Cir. 1998)...................................................................................................5, 7 Lawson v. Lifepoint Hosps. Inc. No. 16-0414, 2017 U.S. Dist. LEXIS 161233 (W.D. La. Sept. 29, 2017).................................5 Macrosolve, Inc. v. Antenna Software, Inc. No. 6:11-CV-287, 2012 WL 12903085 (E.D. Tex. Mar. 16, 2012) ..........................................9 Narco Avionics, Inc. v. Sportsman's Mkt., Inc. No. 90-8056, 1992 U.S. Dist. LEXIS 2024 (E.D. Pa. Feb. 20, 1992) .......................................2 Paradigm Entm't, Inc. v. Video Sys. Co., No. 3:99-CV-2004-P 2000 U.S. Dist. LEXIS 2667 (N.D. Tex. Mar. 3, 2000) ............................................................9 Ruiz v. Martinez No. 07-CV-078, 2007 U.S. Dist. LEXIS 49101 (W.D. Tex. May 17, 2007) ............................6 Schmitz v. Xiqing Diao, No. 11-cv-157 2013 U.S. Dist. LEXIS 196153 (D. Wyo. May 13, 2013) .........................................................9 Seiko Epson Corp. v. Print-Rite Holdings, Ltd. No. 01-500-BR, 2002 WL 32513403 (D. Or. Apr. 30, 2002) ...................................................6 Spike, LLC v. Huawei Techs. Co., Ltd. No. 13-cv-00679, 2016 U.S. Dist. LEXIS 194468 (E.D. Tex. June 6, 2016)............................4 -iii- 7 Rules Federal Rules of Civil Procedure Rule 4(k)(2)................................................................................................................................6 -iv- 7 I. INTRODUCTION Plaintiff devotes its opposition to recasting irrelevant facts as purported "contacts" between the Lenovo Defendants and this forum. Scrutiny of these "contacts," however, confirms this Court lacks jurisdiction. Nearly all of Plaintiff's facts are cherry-picked from www.lenovo.com and a consolidated Annual Report for Lenovo Group Limited ("LGL"). But while both sources include information pertaining to many Lenovo entities worldwide, Plaintiff strives to obfuscate all corporate distinctions. It falsely suggests that every piece of information in those sources apply to LGL. It engages in semantic sleight-of-hand by lumping LGL, Lenovo Shanghai, and Lenovo U.S. together as "Lenovo," then asserting that statements referring to "Lenovo" apply to any or all three entities, which is highly improper.1 As to service, Plaintiff incorrectly argues that service under the Texas statute "culminates" in Texas before any mailing, and thus the Hague Convention does not apply. Not so. Duarte v. Michelin N. Am., Inc., No. C-13-CV-50, 2013 U.S. Dist. LEXIS 73862, at *10 (S.D. Tex. May 3, 2013) ("Because the [Texas SOS] must send copies of the documents [abroad] in order for defendants to have notice of the lawsuit and for the court to have jurisdiction over them, the Hague convention applies."). Plaintiff also does not dispute it is suing only the Lenovo Defendants to avoid venue rules under TC Heartland. This Court should reject these tactics and grant the motion to dismiss. II. PLAINTIFF FAILS TO ESTABLISH PERSONAL JURISDICTION A. The Lenovo Defendants Do Not Place the Accused Products into the Stream of Commerce The stream of commerce test, at a minimum, requires that the defendant "plac[e] goods into the stream of commerce." J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881-82 (2011). 1 In this brief, "Lenovo Shanghai" refers to Lenovo (Shanghai) Electronics Technology Co., Ltd. and "Lenovo U.S." refers to Lenovo (United States) Inc. -1- 7 The Lenovo Defendants submitted evidence showing they do not manufacture, import, ship, distribute, or sell the accused products. (Dkt. 44-2, Cranor Dec. ¶ 4.) In rebuttal, the only evidence Plaintiff offers is a printout from a company called "Import Genius," purportedly showing Lenovo Shanghai shipping various goods to the U.S. (Dkt. 68-11, Ex. I.) But this document does not show Lenovo Shanghai shipping the accused products (tablets) into the U.S. (Id.) Rather, it shows at most Lenovo Shanghai shipping desktop computers, monitors, computer accessories, and tables to the U.S. (Id.; Supp. Cranor Dec. ¶ 2 (explaining that the "TABLE" entries in the document refer to computer tables, not "tablets").) Unable to satisfy the minimum showing under a stream of commerce test, Plaintiff pivots to arguing that Lenovo Shanghai is otherwise "involved" with the accused products. But Plaintiff's only evidence are documents purportedly showing Lenovo Shanghai as the "registrant" for FCC and UL certifications as to an accused product. (Opp., p. 3; Dkts. 68-13 to 68-14, Exs. K, L.) But being the named entity on the certifications does not show Lenovo Shanghai is the manufacturer, seller, or importer of the accused product, or that it otherwise places the accused product into the stream of commerce. Bank of Canton, Ltd. v. Republic Nat'l Bank, 509 F. Supp. 1310, 1312, 1315 (S.D.N.Y. 1980) ("the applicant, in whose name the certificate is issued, may or may not be the manufacturer"; "There is no requirement. . . that the FCC certificate be issued to the seller"; "there is [no] rational basis for inferring that an FCC certificate must be issued in the name of an exporter"). The certifications do not establish that jurisdiction is proper in Texas or the U.S. Narco Avionics, Inc. v. Sportsman's Mkt., Inc., No. 90-8056, 1992 U.S. Dist. LEXIS 2024, at *9-10 (E.D. Pa. Feb. 20, 1992) ("Plaintiff makes much of the fact that [Japanese defendant] arranged to get an FCC identification number. . . for the model A300 transceiver in question. . . . [But] it does not follow that [Japanese defendant] would be subject to the jurisdiction of courts in every state into -2- 7 which the product flowed and the label was read."). As to LGL, Plaintiff argues it "controls" the placement of goods into the stream of commerce, presenting printouts from www.lenovo.com showing an "Operational Center" in North Carolina, three executives based in North Carolina, and job openings for sales positions in Texas. (Dkts. 68-5 to 68-10, Exs. C-H.) Implicit in Plaintiff's reliance on such evidence is the notion that any information on www.lenovo.com is attributable to LGL. This is nonsensical and false. That website is intended to interface with the consuming public, not delineate the separate operating businesses of all Lenovo entities. In fact, the North Carolina "Operational Center" is leased and operated by Lenovo U.S., and owned by an unrelated third party, not LGL or Lenovo Shanghai. (Supp. Cranor Dec. ¶ 3.) The three executives based in North Carolina are all employees of Lenovo U.S. only. (Id. ¶ 4.) And Lenovo U.S., LGL, and Lenovo Shanghai do not have any of the same employees at all. (Id.) The job openings based in Texas are not for employment with LGL or Lenovo Shanghai. (See Dkts. 68-9 to 68-10, Exs. G, H (not identifying LGL or Lenovo Shanghai anywhere); Cranor Dec. ¶ 4 (LGL and Lenovo Shanghai have no employees in the U.S.)). Indeed, the www.lenovocareers.com website on which Plaintiff relies lists open positions across numerous Lenovo entities, in approximately 50 countries and 143 regions. (Yip Dec. ¶ 2.) All such entities cannot logically be subject to this Court's jurisdiction by virtue of a website aggregating all job openings together for convenience. Plaintiff also offers purported evidence of the accused products being sold by third party distributors and retailers. But for this to bear on a stream of commerce analysis, Plaintiff must show that these third parties are part of the Lenovo Defendants' "continuous, established distribution channels" to sell the accused products in Texas. AFTG-TG, LLC v. Nuvoton Tech. -3- 7 Corp., 689 F.3d 1358, 1365 (Fed. Cir. 2012).2 There is no evidence that the Lenovo Defendants have any relationship with these third parties whatsoever, let alone as to the accused products specifically. Nor can any sale of products on www.lenovo.com satisfy a stream of commerce test, as the website does not specifically target Texas. Canatelo, LLC v. AXIS Commc'ns AB, 953 F. Supp. 2d 329, 336-39 (D.P.R. 2013) (no jurisdiction where website does not specifically target sales in forum); Spike, LLC v. Huawei Techs. Co., Ltd., No. 13-cv-00679, 2016 U.S. Dist. LEXIS 194468, at *6 (E.D. Tex. June 6, 2016) (that Chinese defendant's phones can be purchased online "does not alone confer jurisdiction. . . under a stream-of-commerce theory").3 B. Lenovo U.S. Is Not the "Agent" of the Lenovo Defendants Plaintiff asserts jurisdiction is proper under an agency theory, abandoning any alter ego theory of jurisdiction. (Opp., p. 12, n.5.) To establish jurisdiction under an agency theory is extremely difficult: A plaintiff must show with "clear evidence" that the defendant exercises control over the activities of the defendant with relevant contacts in the forum, sufficient to overcome the presumption of corporate separateness. Hageman v. Corporación EG, S.A. de C.V., No. SA:14-CV-976-DAE, 2015 U.S. Dist. LEXIS 41314, at *11 (W.D. Tex. Mar. 31, 2015) (imputing contacts of affiliate "generally requires the corporate separation be a fiction," which requires "clear evidence" to overcome the presumption of corporate separateness). Plaintiff presents no such clear evidence and does not meet its burden. Plaintiff argues that because the Annual Report describes LGL and its affiliates as a 2 Federal Circuit law controls the jurisdictional analysis in a patent infringement case, Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564-65 (Fed. Cir. 1994), not Fifth Circuit law as Plaintiff argues (Opp., p. 6 & n.3). 3 Plaintiff relies heavily on Nuance and three other cases (Opp., pp. 7-8), but none apply here. In those cases, the foreign defendant either manufactured or supplied the accused products, imported or shipped them into the forum, or marketed themselves as the actual company behind the accused products. LGL and Lenovo Shanghai do none of the foregoing. -4- 7 "global" company, Lenovo U.S. must be "operating in concert with and at the direction of" LGL. (Opp., p. 12.) This feeble argument disregards the nature of a consolidated annual report. Contrary to Plaintiff's assertions, the Annual Report referring to the entire business using words like "global," "we," "group," "our," or "Lenovo" neither establishes any requisite control by LGL nor negates the individual entities' separate corporate identities. Hildebrandt v. Indianapolis Life Ins. Co., No. 3:08-CV-1815-B, 2009 U.S. Dist. LEXIS 12048, at *17 (N.D. Tex. Feb. 17, 2009) (finding that "consolidating the activities of a subsidiary with the parent's activities is common business practice and inclusion of statements about the benefits of the subsidiary's operations to the parent" do not rebut the presumption of corporate separateness); Lawson v. Lifepoint Hosps. Inc., No. 16-0414, 2017 U.S. Dist. LEXIS 161233, at *9 (W.D. La. Sept. 29, 2017) (granting motion to dismiss for lack of personal jurisdiction as use of "we" throughout Annual Report does not render foreign corporation subject to jurisdiction of forum merely because its subsidiary is doing business there); Jazini by Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998) ("The [plaintiffs] refer to excerpts from Nissan Japan's annual report which they say show Nissan Japan's 'pervasive control and domination of its [] subsidiaries.' They cite statements by Nissan Japan's president that the company 'need[s] to become a truly global company' and that 'I want each part of our global operations, and this includes Japan, to focus on contributing to the company as a whole.' None of this material. . . shows [such] pervasive control over the subsidiary. . . ."). Plaintiff also argues that jurisdiction is proper because "there is little or no distinction in branding or marketing through the Lenovo website," and LGL, Lenovo Shanghai, and Lenovo U.S. are "indistinguishable to consumers." (Opp., pp. 4, 13.) But the "Lenovo" branding, and whether consumers can distinguish between various Lenovo entities around the world, is absolutely irrelevant to the jurisdictional analysis. See In re Enter. Rent-A-Car Wage & Hour -5- 7 Empl. Practices Litig., 735 F. Supp. 2d 277, 323 (W.D. Pa. 2010), aff'd, 683 F.3d 462 (3d Cir. 2012) ("Enterprise Rent-A-Car is portrayed as a single brand to the public, but this evidence does not demonstrate the necessary control by defendant parent over the subsidiaries."); Seiko Epson Corp. v. Print-Rite Holdings, Ltd., No. 01-500-BR, 2002 WL 32513403, at *15 (D. Or. Apr. 30, 2002) ("The Group's marketing image, . . . alone is insufficient to justify disregarding the general rule of corporate distinctions"); In re Chinese-Manufactured Drywall Prods. Liab. Litig., 168 F. Supp. 3d 918, 937 & n.17 (E.D. La. 2016) ("[T]hat defendant companies were marketed to investors 'as [] one group' and [] management focused on. . . cultivating a unified corporate culture. . . does not demonstrate control") (citation and internal quotations omitted). C. The Lenovo Defendants Have No Contacts With the U.S. as a Whole That Give Rise to Plaintiff's Cause of Action Plaintiff does not allege any additional facts for asserting personal jurisdiction over the Lenovo Defendants pursuant to Rule 4(k)(2). Rule 4(k)(2) requires the same minimum contacts analysis as for specific jurisdiction, but the foreign defendant's contacts with the U.S. as a whole, if any, must "give rise to the cause of action in question." Ruiz v. Martinez, No. 07-CV-078, 2007 U.S. Dist. LEXIS 49101, at *38 (W.D. Tex. May 17, 2007). LGL and Lenovo Shanghai have no contacts with the U.S., as a whole or otherwise, that give rise to Plaintiff's infringement cause of action, which is based on the alleged "making, having made, using, importing, providing, supplying, distributing, selling or offering for sale integrated circuits having advanced on-chip service capabilities." (Dkt. 1, ¶¶ 57, 78, 96, 115.) There are no facts showing LGL or Lenovo Shanghai do any of these things. The facts show the opposite. (Cranor Dec. ¶ 4.) D. Asserting Personal Jurisdiction Would Be Unfair and Unreasonable Plaintiff argues that asserting personal jurisdiction would be fair by relying on cases that are inapposite. In Absolute Software, Denman Tire, Gerber, and Nuance, the foreign defendants -6- 7 were the entities actually manufacturing, importing, shipping, or selling the accused products. The Lenovo Defendants do none of this. Moreover, the plaintiffs in those cases had real interests in the forum. In Absolute Software, the plaintiffs had actual business operations and service offerings in the U.S., and their U.S. headquarters were in the forum. In Denman Tire, the plaintiff was seriously injured by the allegedly defective product in a vehicular accident that occurred in Texas. Here, Plaintiff is a shell company formed solely to assert patents. Plaintiff downplays the burden of "the location of future depositions." (Opp., p. 10.) But this district has declined to assert jurisdiction on the basis of the distant locations to which witnesses must travel, for deposition or otherwise. Auto Wax Co. v. Kasei Kogyo Co., No. A 00 CA 531 SS, 2001 U.S. Dist. LEXIS 24023, at *9 (W.D. Tex. Sept. 26, 2001) ("While [Plaintiff] notes it is easier to travel these days, it is still inconvenient and burdensome, especially when at least some of the key witnesses will likely have to travel from Japan [to Texas] … . In short, Texas is only truly convenient for one entity: the plaintiff. The state's interest in protecting its citizens from injury is not significant enough to override the burden on everyone else in the case, particularly when [foreign defendant's] connection to Texas is so attenuated."). E. Plaintiff Is Not Entitled to Any Jurisdictional Discovery Jurisdictional discovery against foreign defendants is disfavored and the test for obtaining it is "strict." Jazini, 148 F.3d at 186 (affirming denial of jurisdictional discovery, finding that even if it may be "extremely difficult for plaintiffs. . . to make a prima facie showing of jurisdiction over a foreign corporation" without jurisdictional discovery, that is "the consequence of the problems inherent in attempting to sue a foreign corporation that has carefully structured its business so as to separate itself from the operation of its wholly-owned subsidiaries in the United States—as it properly may do"). A plaintiff seeking jurisdictional discovery must identify with particularity the discovery sought, what information it expects to obtain, and how that would -7- 7 support the assertion of personal jurisdiction. See ETS-Lindgren, Inc. v. MVG, Inc., No. 15-CA- 00456-SS, 2015 U.S. Dist. LEXIS 149906, at *14 (W.D. Tex. Nov. 4, 2015). Instead of satisfying its burden, Plaintiff vaguely seeks discovery on whether the Lenovo Defendants are "involved in the manufacture, sale, or marketing of the accused products." (Opp., p. 15.) But the Lenovo Defendants submitted evidence they are not so involved (Cranor Dec. ¶ 4), and Plaintiff has offered no evidence raising any issue of fact. Catalyst Medium Four, Inc. v. CardShark, LLC, No. 14-CA-1007-SS, 2015 U.S. Dist. LEXIS 38729, at *19 (W.D. Tex. Mar. 26, 2015) (no jurisdictional discovery unless briefing "raises issues of fact"). Plaintiff also claims it needs discovery to determine "whether Lenovo (U.S.)'s sales of the accused products in Texas are authorized by its parent Lenovo Group." (Opp., p. 15.) This is unacceptably lacking in particularity. Plaintiff fails to explain what "authorized" means, what discovery would show such "authorization," or how such "authorization" would support the assertion of jurisdiction. Plaintiff's request for discovery "in the hopes it might, with any luck, reveal jurisdiction is a textbook fishing expedition with no basis in the current record or even its own allegations." Catalyst, 2015 U.S. Dist. LEXIS 38729, at *21; Bar Grp., LLC v. Bus. Intelligence Advisors, Inc., 215 F. Supp. 3d 524, 562 (S.D. Tex. 2017). Jurisdictional discovery is especially unwarranted, as Plaintiff targeted the Lenovo Defendants to circumvent venue rules, and thus its "need" for such discovery is self-inflicted.4 III. PLAINTIFF HAS NOT EFFECTED SERVICE OF PROCESS A. The Hague Convention Applies to Preempt the Texas Service Statute, Because Service Under the Statute Cannot Be Complete Without Mailing Plaintiff argues the Hague Convention does not apply because service is complete upon 4 As the Lenovo Defendants are not subject to personal jurisdiction in this or any other Texas courts, venue is improper. (Mot., pp. 19-20.) -8- 7 receipt of process by the Texas Secretary of State. (Opp., pp. 15-18.) This contradicts the law. Service under the statute is not complete "until the documents have been transmitted abroad to the defendant," pursuant to the Hague Convention. Duarte, 2013 U.S. Dist. LEXIS 73862 at *10; Macrosolve, Inc. v. Antenna Software, Inc., No. 6:11-CV-287, 2012 WL 12903085, at *2 (E.D. Tex. Mar. 16, 2012) (Secretary of State must "send notice of the complaint to the [foreign defendant]," which "requires the transmittal of judicial documents abroad" such that "the Hague Convention is implicated"); Paradigm Entm't, Inc. v. Video Sys. Co., No. 3:99-CV-2004-P, 2000 U.S. Dist. LEXIS 2667, at *20 (N.D. Tex. Mar. 3, 2000) (Secretary of State must forward documents to foreign defendant pursuant to Hague Convention to "technically complete service"); Int'l Transactions, Ltd. v. Embotelladora Agral Regionmontana SA de CV, 277 F. Supp. 2d 654 (N.D. Tex. 2002). Meanwhile, Water Splash considered "whether the [Hague] Convention prohibits service by mail" and not, as Plaintiff asserts, whether service under the Texas statute "culminates" in Texas prior to mailing service of process.5 B. Plaintiff Has Expended No Effort Whatsoever to Effect Service Properly, and Should Not Be Rewarded With Alternative Means of Service Under "principles of comity," a plaintiff should attempt to effect service per the Hague Convention before a court entertains alternative service. James Avery Craftsman, Inc. v. Sam Moon Trading Enters., No. 16-cv-00463, 2018 U.S. Dist. LEXIS 219083, at *8 (W.D. Tex. July 5, 2018); Schmitz v. Xiqing Diao, No. 11-cv-157, 2013 U.S. Dist. LEXIS 196153, at *10 (D. Wyo. May 13, 2013) ("[C]ourts often require[ plaintiff] … to first attempt service by means of the Hague Convention before seeking court-ordered alternative service.") (citing cases); Halvorssen v. 5 The other cases Plaintiff cites also do not apply. Campus Investments involved substituted service pursuant to a Texas statute that has since expired and is no longer good law. In Volkswagenwerk, the plaintiffs served the American counterpart of a German corporation, which was deemed to be the German corporation's agent for service of process in the U.S. -9- 7 Simpson, 328 F.R.D. 30, 35 (E.D.N.Y. 2018) (requiring plaintiff to effect service through Hague even if "costly and time consuming," as it "has attempted no such service"). Plaintiff hopes to do the bare minimum to effect service, through the Texas Secretary of State, and has not even attempted to comply with the Hague Convention. Such disregard for the law should not be recompensed with alternative service. Codigo Music, LLC v. Televisa, S.A. de C.V., No. 15-CIV-21737, 2017 U.S. Dist. LEXIS 160747, at *27-28 (S.D. Fla. Sept. 29, 2017) (denying plaintiff's request for alternative service, despite its prior attempt to serve defendants through Hague Convention, where there is "no evidence that the Defendant in this case is evading service, that the Defendant's address is unknown, that there is any great urgency present in the case, and there has been no showing that service is particularly difficult,"); Flava Works, Inc. v. Doe, No. 12 C 5844, 2013 U.S. Dist. LEXIS 57588, at *21 (N.D. Ill. Apr. 19, 2013) ("[P]laintiff has not demonstrated reasonable attempts at service on defendant sufficient to require the court's intervention at this time"). Plaintiff relies on Fundamental Innovation, but it does not apply because the U.S. affiliate there was also a named defendant and the plaintiff already engaged a foreign process server to effect service per the Hague Convention. To grant alternative service here would effectively nullify the Hague Convention in Texas. The Court should not countenance such a result. To the extent, however, the Court is inclined to grant alternative service (it should not), the Lenovo Defendants request a stay of the proceedings against them instead, until they are served via the Hague Convention. See Altova GmbH et al v. Syncro Soft SRL, No. 1:17-cv-11642-PBS, Dkt. 9 (D. Mass. Jan. 29, 2018) ("The case is administratively closed until service [on foreign defendant] is accomplished."). -10- 7 Dated: March 7, 2019 Respectfully submitted, /s/ Eric H. Findlay Eric H. Findlay Texas State Bar No. 00789886 FINDLAY CRAFT, P.C. 102 North College Avenue, Suite 900 Tyler, TX 75702 (903) 534-1100 (903) 534-1137 (Fax) EFindlay@FindlayCraft.com Martin Bader (Admitted Pro Hac Vice) SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 12275 El Camino Real, Suite 200 San Diego, CA 92130-4092 (858) 720-8900 (858) 509-3691 (Fax) mbader@sheppardmullin.com Lai L. Yip (Admitted Pro Hac Vice) Toni Qiu (Admitted Pro Hac Vice) SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Four Embarcadero Center, 17th Floor San Francisco, CA 94111 (415) 434-9100 (415) 434-3947 (Fax) lyip@sheppardmullin.com tqiu@sheppardmullin.com Attorneys for Specially Appearing Defendants Lenovo (Shanghai) Electronics Technology Co., Ltd. and Lenovo Group Ltd. -11- 7 CERTIFICATE OF SERVICE I hereby certify that on March 7, 2019, a true and correct copy of the foregoing REPLY IN SUPPORT OF SPECIALLY APPEARING DEFENDANTS LENOVO (SHANGHAI) ELECTRONICS TECHNOLOGY CO., LTD. AND LENOVO GROUP LTD.'S MOTION TO DISMISS FOR IMPROPER SERVICE OF PROCESS, LACK OF PERSONAL JURISDICTION, AND IMPROPER VENUE was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. Mail. Parties may access this filing through the Court's electronic filing system. /s/ Eric H. Findlay Eric H. Findlay -12-