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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

MYCHOICE, LLC,

 Plaintiff,

v.

TAIV, INC.,

 Defendant.

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CIVIL ACTION NO. 2:23-CV-507-JRG-RSP

MEMORANDUM ORDER

Before the Court is the Motion for Rule 4(f)(3) Service of Process on Defendant Taiv in 

Canada field by Plaintiff MyChoice, LLC. Dkt. No. 6. In the Motion, Plaintiff requests service of 

process through email and Instagram on Defendant Taiv, Inc. itself, by LinkedIn on Taiv’s CEO, 

by email on its Chief Revenue Officer, by email on Taiv’s counsel in Canada, and by traditional 

service on the registered agent of Taiv’s U.S. subsidiary. Id. at 2. For the following reasons, the 

Motion is DENIED without prejudice.

I. LEGAL STANDARD

The Federal Rules of Civil Procedure state that a foreign corporation served outside the 

United States must be served “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(h)(2). Federal Rule of Civil 

Procedure 4 (f) provides that an individual in a foreign country may be served as follows: 

(1) by any internationally agreed means of service that is reasonably calculated 

to give notice, such as those authorized by the Hague Convention on the Service 

Abroad of Judicial and Extrajudicial Documents; 

(2) if there is no internationally agreed means, or if an international agreement 

allows but does not specify other means, by a method that is reasonably calculated 

to give notice: 

(A) as prescribed by the foreign country’s law for service in that country in 

an action in its courts of general jurisdiction; 

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(B) as the foreign authority directs in response to a letter rogatory or letter 

of request; or 

(C) unless prohibited by the foreign country’s law, by:

(i) delivering a copy of the summons and of the complaint to the 

individual personally; or 

(ii) using any form of mail that the clerk addresses and sends to the 

individual and that requires a signed receipt; or 

(3) by other means not prohibited by international agreement, as the court orders.

Rule 4(f)(3)—authorizing court-ordered service “by other means not prohibited by 

international agreement”—is “not a ‘last resort’ or a type of ‘extraordinary relief’ for a plaintiff 

seeking to serve process on a foreign defendant.” In re OnePlus Tech. (Shenzhen) Co., Ltd., 2021 

WL 4130643, at *3 (Fed. Cir. Sept. 10, 2021) (quoting Rio Props., Inc. v. Rio Int'l Interlink, 284 

F.3d 1007, 1015 (9th Cir. 2002)). To the contrary, Rule 4(f)(3) “stands independently, on equal 

footing” with other methods of service under Rule 4(f). Id. (quoting Nuance Communications, Inc. 

v. Abbyy Software House, 626 F.3d 1222, 1239 (Fed. Cir. 2010)). However, courts must be mindful 

that “Rule 4(f)(3) was not meant to displace the other rules for service in every instance in which 

alternative means of service are seen as more convenient.” Id.

Accordingly, courts typically order service under Rule 4(f)(3) after considering the delay 

and expense of conventional means of service in conjunction with other special circumstances that 

justify court intervention. Id.; see also SIMO Holdings, Inc. v. Hong Kong uCloudlink Network 

Tech. Ltd., 2020 WL 6578411, at *1 (E.D. Tex. June 15, 2020) (noting that plaintiffs had attempted 

service pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial 

Documents). District courts are granted broad discretion in making such a determination. OnePlus, 

2021 WL 4130643, at *3–4.

Once a district court has exercised its discretion and determined that service under Rule 

4(f)(3) is warranted, the court must consider whether the requested means of alternative service 

comports with due process as to each defendant. SIMO Holdings, 2020 WL 6578411, at *2; 

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Fundamental Innovation Sys. Int'l, LLC v. ZTE Corp., 2018 WL 3330022, at *5 (N.D. Tex. Mar. 

16, 2018) (citing RPost Holdings, Inc. v. Kagan, 2012 WL 194388, at *2 (E.D. Tex. Jan. 23, 

2012)). “Due process, in turn, requires ‘reasonable notice and an opportunity to be heard.’” ZTE 

Corp., 2018 WL 3330022, at *5 (citing Gramercy Ins. Co. v. Kavanagh, 2011 WL 1791241, at *1 

(N.D. Tex. May 10, 2011)). “[T]he method of service crafted must be ‘reasonably calculated, under 

all circumstances, to apprise interested parties of the pendency of the action and afford them an 

opportunity to present their objections.’” RPost, 2012 WL 194388, at *2 (citing Mullane v. Cent. 

Hanover Bank & Trust Co., 339 U.S. 306, 312 (1950)).

Here, Defendant is alleged to be a corporation incorporated under the laws of Manitoba, 

Canada and headquartered in Winnipeg, Manitoba, Canada. Dkt. No. 6 at 2. Canada is a signatory 

to the Hague Convention. See https://www.hcch.net/en/states/hcch-members/details1/?sid=28. 

II. ANALYSIS

A. Applicability of the Hague Convention

The Hague Convention procedure is “mandatory if available at the place of service” and 

“does not apply where the address of the person to be served with the document is not known.”

Whirlpool Properties, Inc., 2023 WL 5193446, at *3 (E.D. Tex. Aug. 11, 2023) (quoting RPost 

Holdings, Inc. v. Kagan, No. 2:11-cv-238-JRG, 2012 U.S. Dist. LEXIS 7566, at *1 (E.D. Tex. Jan. 

23, 2012)). Canada is a signatory to the Hague Convention and its procedures are available. 

Plaintiff has not represented that Defendant’s address is unknown. For service on entities residing 

in Canada, the Court finds that the Hague Convention would apply. 

With regards to Plaintiff’s request to serve by traditional service the registered agent of 

TaiV’s apparent U.S. Subsidiary, Taiv USA, Inc., the Hague Convention does not apply. See 

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Element Capital Commercial Company Pte. Ltd. v. BOE Technology Group Co., Ltd., 2022 WL 

4368162, at *2 (E.D. Tex. 2022).

Plaintiff asserts that Rule 4(f)(3) service can be undertaken without attempting Hague 

Convention service. Dkt. No. 6 at 5–7 (citing In re OnePlus Technology (Shenzhen) Co., Ltd., 2021 

WL 4130643, at *3–4 (Fed. Cir. 2021); Element Capital Commercial Company Pte. Ltd. v. BOE 

Technology Group Co., Ltd., 2022 WL 4368162, at *2 (E.D. Tex. 2022)). 

Plaintiff misapplies the cited authorities. The Federal Circuit cautioned the district court 

against instituting 4(f)(3) service where conventional means of service “would be merely 

inconvenient.” In re OnePlus Technology (Shenzhen) Co., Ltd., 2021 WL 4130643, at *3–4 (Fed. 

Cir. 2021). Even with the recognized broad discretion afforded district courts in authorizing 

alternative service of process, the Court must still take into consideration the availability of Hague 

Convention or more conventional means of service. Id. at *3 (“We have concerns about the district 

court's invocation of alternative means of service under Rule 4(f)(3) based solely on the fact that 

service under the Hague Convention is more cumbersome than more informal means of service on 

representatives of a foreign entity.”); Element Capital Commercial Company Pte. Ltd. v. BOE 

Technology Group Co., Ltd., 2022 WL 4368162, at *2 (E.D. Tex. 2022).

Rather than permission to order Rule 4(f)(3) alternative service in any case, the cited case 

law makes clear that a showing of more than mere convenience is necessary. Indeed, the case law 

does not support ordering alternative service where no significant steps or attempts have already 

been taken by Plaintiff. The Court evaluates whether Plaintiff has demonstrated Rule 4(f)(3) is

nevertheless proper due to “delay and expense of conventional means of service in conjunction 

with other special circumstances that justify court intervention.” Element Capital, 2022 WL 

4368162, at *2.

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B. Delay, Expense, and Other Special Circumstances

Hague Convention service is applicable for all requested forms of service except service 

on the U.S. based subsidiary. However, Plaintiff has asserted several reasons for why Rule 4(f)(3) 

alternative service should otherwise be permitted. Dkt. No. 6 at 7–10.

First, Plaintiff asserts that alternative service should be granted because Taiv “has made a 

calculated effort to avoid service of process.” Dkt. No. 6 at 7. Particularly, Plaintiff asserts that 

Taiv is a foreign corporation that is not registered to do business in Texas. Id. Plaintiff argues this 

alleged violation of the Texas Business Code shows that Taiv is avoiding designation of a Texas 

agent for service of process. Id. Further, Plaintiff asserts that Taiv’s Canadian counsel’s knowledge 

of patent law and cited publication on the risks of patent litigation for Canadian businesses 

demonstrates deliberate avoidance of service. Dkt. No. 6 at 3–4, 7–8; see Dkt. No. 6-9. These facts 

alone do not show deliberate avoidance of service of process.

Second, Plaintiff asserts that pursuing service through the Hague Convention will result in 

a three-to-six-month delay. Dkt. No. 6 at 8–9 (collecting cases). The Court finds that this would 

weigh in favor of alternative service, but notes that Plaintiff has not attempted Hague Convention 

service nor any method of conventional service at this time. 

Third, Plaintiff asserts that Defendant already has knowledge of the lawsuit and Plaintiff 

has already sought waiver or acceptance of service. Dkt. No. 6 at 9. What the record shows is that 

Plaintiff contacted an individual who is a Canadian attorney who has explicitly indicated he does

not represent Taiv for U.S. litigation matters and is not authorized to accept service of process. 

Plaintiff has further shown that a firm that has done work for Taiv in the past is now aware of the 

lawsuit but it is unclear what that firm’s current relationship is with the Defendant. These facts do 

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not demonstrate that the Defendant is aware of the lawsuit to such an extent that service of process 

is merely a formality at this juncture. 

At a minimum Plaintiff has demonstrated that pursuing service of process through the 

Hague Convention could result in a delay of several months. The Court finds that delay alone does 

not demonstrate for this case that alternative service of process is warranted at this time. Plaintiff’s 

request for the alternative methods not related to the U.S. subsidiary are DENIED without 

prejudice, until such time that Plaintiff has made real attempts to effect conventional service. The 

Court turns to whether service on the U.S. subsidiary, Taiv USA Inc., would comport with due 

process. 

C. Due Process

Plaintiff asserts that service on the U.S. based subsidiary Taiv USA Inc. will give notice of 

the suit. Dkt. No. 6 at 14–15. Plaintiff asserts that service on the subsidiary will apprise Taiv of 

the lawsuit because Taiv’s CEO Noah Palansky could be an executive of the subsidiary as well. 

Id. at 15. 

The Court is not convinced that Plaintiff’s shaky assertions are enough to demonstrate that 

service on the subsidiary is reasonably calculated to notify Defendant of the lawsuit. Plaintiff did 

not show that Defendant’s domestic subsidiary is an alter ego of Defendant. Nor did Plaintiff show 

that Defendant has authorized the domestic subsidiary to accept service on Defendant’s behalf. 

Therefore, Plaintiff has not provided sufficient evidence to support a finding that the requirements 

of due process are satisfied by serving Defendant’s apparent domestic subsidiary. See SIMO 

Holdings, No. 2:20-CV-00003-JRG, 2020 WL 6578411, at *3 (E.D. Tex. June 15, 2020) 

(discussing plaintiff's failure to provide sufficient evidence to show domestic subsidiaries were the 

alter ego of defendants).

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III. CONCLUSION

For the above reasoning, Plaintiff’s Motion for Alternative Service of Process is DENIED

without prejudice. 

____________________________________

ROY S. PAYNE

UNITED STATES MAGISTRATE JUDGE SIGNED this 3rd day of January, 2012. SIGNED this 4th day of January, 2024.

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