United States District Court, E.D. Texas, Marshall Division
MEMORANDUM OPINION AND ORDER
GILSTRAP UNITED STATES DISTRICT JUDGE
the Court is Defendant GiantPlus Technology Co., Ltd.'s
(“GiantPlus”) Motion to Dismiss Pursuant to
Federal Rule of Civil Procedure 12(b)(5) for Insufficient
Service of Process (the “Motion”). (Dkt. No. 16).
Having considered the Motion and briefing, and for the
reasons set forth herein, the Court is of the opinion that it
should be and hereby is DENIED.
Vista Peak Ventures, LLC (“VPV”) filed a
complaint against GiantPlus on May 23, 2019. (Dkt. No. 1.)
VPV requested that the Clerk send the summons and complaint
to GiantPlus via international, registered mail, return
receipt requested. (Dkt. No. 16 at 1.) On June 10, 2019, a
security guard employed by GiantPlus took delivery of the
mail, which included the summons and complaint (the
“Notice”) regarding the current action.
Id. at 2. The security guard stamped a receipt
acknowledging that the mail was received. Id.
Notice was then delivered to the General Administrator of
GiantPlus who noticed that the letter was from the U.S.
District Court of the Eastern District of Texas. Id.
The General Administrator stamped the letter, acknowledging
receipt, and then returned the letter to sender because it
was not directed to a specific individual or department.
GiantPlus now moves to dismiss VPV's Complaint for
insufficient service under Federal Rule of Civil Procedure
Standard of Review
order for a court to exercise jurisdiction over a defendant,
a plaintiff must serve that defendant with process according
to Rule 4 of the Federal Rules of Civil Procedure.
Fed.R.Civ.P. 4. In the absence of such process, a defendant
may move to dismiss a case under Federal Rule of Civil
Procedure 12(b)(5). See Murphy Bros. v. Michetti Pipe
Stringing, 526 U.S. 344, 350 (1999). In order to avoid
dismissal, the plaintiff must make a prima facie
showing of proper service. Carimi v. Royal Carribean
Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992).
challenges the effectiveness of VPV's service of process
on three grounds. First, GiantPlus contends that Taiwanese
law prohibits a foreign court or its court clerk from
directly mailing a summons to a Taiwan-based defendant.
Second, GiantPlus contends the stamp acknowledging receipt by
the security guard and General Administrator do not
constitute a signature for return of service. Third,
GiantPlus argues that service was not made on a person
authorized to accept service.
Rule of Civil Procedure 4(h)(2) provides that serving a
foreign corporation “at a place not within a judicial
district of the United States” must be done in any
manner prescribed by Rule 4(f) for serving an individual,
except personal delivery under Rule 4(f)(2)(C)(i). Rule 4(f)
permits service upon individuals in a foreign country:
(1) by any internationally agreed means reasonably calculated
to give notice, such as those means authorized by the Hague
Convention on the Service Abroad of Judicial and
Extrajudicial Documents; or
(2) if there is no internationally agreed means of service or
the applicable international agreement allows other means of
service, provided that service is reasonably calculated to
(A) in the manner prescribed by the law of the foreign
country for service in that country in an action in any of