1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

ILLINOIS EASTERN DIVISION

Halo Acoustic Wear LLC

Plaintiff,

v.

THE PARTNERSHIPS and 

UNINCORPORATED ASSOCIATION 

IDENTIFIED ON SCHEDULE “A”

Defendants.

Case No.: 1:20-cv-04248

Judge: Hon. Steven C. Seeger

Magistrate Judge: Hon. Jeffrey T. Gilbert

MEMORANDUM IN SUPPORT OF MOTION BY DEFENDANT TO

DISMISS UNDER FED. R. CIV. P. 4,12 (b)(5), AND TO OPPOSE

PLAINTIFF’S MOTION FOR ENTRY OF A PRELIMINARY INJUNCTION

Defendant Azzker, through its operator Shenzhen Vanergy Technology Co., Ltd.

(hereinafter, “Azzker”), submits this memorandum of law in support of its motion to dismiss based 

on improper service. Because the service of process was improper due to the non-compliance with 

the Hague Service Convention and the service and Defendant was not served within the time limit 

after the complaint was filed, the complaint against Defendant should be dismissed, and the

preliminary injunction should not be granted.

BACKGROUND

The plaintiff sued hundreds of different online entities, which operated stores within 

Amazon. One of defendants, Azzker, moves this court to dismiss the complaint for improper 

service, and that service and Defendant was not served within the time limit after the complaint was 
2

filed and deny the motion for entry of a preliminary injunction as to Azzker’s asset and user

account. 

ARGUMENT

A. Defendant Azzker was not served within the time limit after the complaint was filed

prescribed by the Federal Rule of Civil Procedure.

Rule 4(m) provides that “if a defendant is not served within 90 days after the complaint is 

filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action 

without prejudice against that defendant or order that service be made within a specified time.”

Although Rule 4(m)'s deadline for serving process within 90 days does not apply to service in a 

foreign country, this exception does not apply if the Plaintiff did not attempt to serve the defendant 

in the foreign country. USHA (India) Ltd. v. Honeywell Int’l, 421 F.3d 129, 134 (2d Cir. 2005).

Further, when the foreign country exception to Rule 4(m)'s time limit applies, courts generally use a 

flexible due diligence standard to determine whether service of process was timely. The plaintiff 

bears the burden of proving that it exercised due diligence in attempting to serve the defendant.

The rationale for excluding international service of process from the 90-day time limit 

imposed by Rule 4(m) is that such international service of process in a foreign country generally 

requires more than the time set by Rule 4(m). See Committee Notes on Rules-2016 Amendment.

Here, Plaintiff filed the complaint on July 19, 2020 [Dkt. 1], however, Certificate of Service 

[Dkt. 31] was filed on January 12, 2021. According to Summons Returned Executed by Halo 

Acoustic Wear LLC [Dkt. 30] and Certificate of Service [Dkt. 31] filed on January 12, 2021, instead 

of serving Defendants in accordance with international service, i.e., Hague Convention, Plaintiff 

served Defendants by email. Therefore, the rational for excluding international service of process 

from the 90-day time limit imposed by Rule 4(m) does not apply here.

Moreover, Plaintiff does not meet its burden of proving that it exercised due diligence in 
3

attempting to serve Azzker because no record indicates that Plaintiff has ever tried to begin the 

process of serving Azzker in accordance with Hague Convention within the standard 90-day time 

period.

As a result, the Complaint should be dismissed because of Plaintiff’s failure to even try to 

serve a foreign defendant within the standard 90-day time period.

B. Defendant Azzker was not served with adequate process prescribed by the 

Federal Rule of Civil Procedure.

The Lanham Trademark Act does not have a provision allowing extraterritorial service 

of process. Webster Dictionary Corp. v. Ginzburg, 70 F.R.D. 412, 413 (N.D. Ill. 1975); Mallard 

v. Mallard, No. 90 C 3335, 1992 WL 47998, at *2 (N.D. Ill. Mar. 4, 1992). “[T]he plaintiff 

bears the burden to demonstrate that the district court has jurisdiction over each defendant 

through effective service.” Cardenas v. City of Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011) 

(citing Homer v. Jones–Bey, 415 F.3d 748, 754 (7th Cir. 2005)).

Every defendant must be served with a copy of the complaint and summons in 

accordance with Rule 4. Fed. R. Civ. P. 4(b), 4(c)(1). Defendant, Azzker, is Chinese business 

entity with no physical presence in the United States. Rule 4(f) authorizes two methods of 

service at issue here. First, service may be made “by any internationally agreed means of 

service that is reasonably calculated to give notice, such as those authorized by the Hague 

Convention.” Fed. R. Civ. P. 4(f)(1). Second, Rule 4(f)(3) authorizes service “by other means 

not prohibited by international agreement, as the court orders.”

Both the United States and China are signatories to the Hague Service Convention.

The Hague Service Convention has the force of federal law and limits available methods of 

service under Fed. R. Civ. P. 4(f)(3). Intended to simplify and standardize serving process abroad, 
4

the Hague Service Convention “specifies certain approved methods of service and ‘pre-empts 

inconsistent methods of service’ wherever it applies.” Water Splash, Inc. v. Menon, 137 S. Ct. 

1504, 1507 (2017) (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 

(1988) (noting that “compliance with the Convention is mandatory in all cases to which it 

applies.”)); see also Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004); Ackermann v.Levine, 

788 F.2d 830, 838 (2nd Cir. 1986).

Service of process by email is inappropriate in our case since (1) the Hague Service 

Convention is applicable to our case; and (2) Plaintiff failed to serve Azzker properly under 

the Hague Service Convention.

1. The Hague Service Convention is Applicable in Our Case since the Plaintiff 

Can Take Reasonable Effort to Find Moving Defendants’ Physical Address.

Courts look to Article 1 to determine whether the Hague Service Convention applies. 

Schlunk, 486 U.S. at 699. Article 1 specifies the Hague Service Convention’s scope. The first 

sentence states the “Convention shall apply in all cases, in civil or commercial matters, where 

there is occasion to transmit a judicial or extrajudicial document for service abroad.” Id. 

(quoting Article 1 of the Hague Service Convention, 20 U.S.T. at 362). Article 1 further 

states the Hague Service Convention does not apply “where the address of the person to be 

served with the document is not known.” Art. 1, 20 U.S.T. at 362.

Courts have interpreted the second sentence of Article 1 consistently. A plaintiff 

cannot close its eyes to the obvious to avoid the Hague Service Convention; the plaintiff must 

make reasonably diligent efforts to learn a defendant’s mailing address. See, e.g., Advanced 

Access Content Sys. Licensing Admin., LLC v. Shen, 2018 WL 4757939, at *4– 5 (S.D.N.Y. 

Sept. 30, 2018); Progressive Se. Ins. Co. v. J & P Transp., 2011 WL 2672565, at *3 (N.D. 

Ind. July 8, 2011) (citing Opella v. Rullan, 2011 WL 2600707, at *5 (S.D. Fla. June 29, 
5

2011)); Compass Bank v. Katz, 287 F.R.D. 392, 394–95 (S.D. Tex. 2012) (collecting and 

discussing cases).

Azzker uploaded its true and correct address to Amazon.com when it registered its 

account with Amazon. Decl. of Yi, ¶ 4. Moreover, a true and correct copy of Azzker’s business 

information posted on Amazon.com is attached herein as Exhibit 1. A true and correct copy of 

business license with certified translation of Azzker’s operator Shenzhen Vanergy Technology 

Co., Ltd. with its address is attached herein as Exhibit 2. Thus, this is not a case “where the 

address of the person to be served with the document is not known”. Plaintiff can obtain 

Azzker’s physical addresses from Amazon.com because Azzker complies with Amazon’s 

requirement that each store needs to provide official registration and thus Amazon has physical 

addresses of stores operated on it.

Therefore, Plaintiff has failed to carry its burden to show that Azzker’s address was

unknown. Consequently, the Hague Service Convention applies in this case.

2. Plaintiff Failed to Serve Moving Defendants Properly under the Hague 

Service Convention.

The Supreme Court of the United States has stated that the drafters of the Hague 

Service Convention intended to prohibit a method of service not mentioned in its text. The 

Supreme Court took a broad view of the Convention in 1988, holding that it “pre-empts 

inconsistent methods of service . . . [wherever] it applies.” Schlunk, supra, 486 U.S. at 699. 

The Court reaffirmed that holding, quoting this language verbatim, in 2017. Water Splash, 

137 S. Ct. at 1507.

The Hague Convention permits service only by the following means: via a central 

authority (Articles 2-7), diplomatic and consular agents (Articles 8-9), mail or through a judicial 

official of the State of destination if the destination State does not object (Article 10), methods 
6

allowed by other applicable international agreement (Article 11), and other means as allowed by 

the internal laws of the destination State (Article 19). See Water Splash Inc., 137 S. Ct. at 1508 

(reviewing permitted service methods). “The legal sufficiency of a formal delivery of 

documents must be measured against some standard. The Convention does not prescribe a 

standard, so we almost necessarily must refer to the internal law of the forum state.” Schlunk, 

486 U.S. at 700.

This court has found that China’s Article 10(a) objection precludes email service.

Luxottica Grp. S.p.A. v. Partnerships & Unincorporated Associations Identified on Schedule 

“A”, 391 F. Supp. 3d 816, 827 (N.D. Ill. 2019), reconsideration denied in part, No. 18 CV 

2188, 2019 WL 2357011 (N.D. Ill. June 4, 2019). Plaintiff did not take any action to serve 

AZZKER by any means permitted by the Hague Convention. 

Rather, Plaintiff filed motion for electronic service of process based on a declaration and 

circumstances that are not suitable to this present case. It is true that this Court has allowed 

precisely email service in the past. See Strabala v. Zhang, 318 F.R.D. 81 (N.D. Ill. 2016). 

However, “email service of [a China-based] online business defendant is warranted when the 

defendant has no readily discoverable physical address, conducts business over the Internet, and 

uses email regularly in contacting customers.” Gianni Versace, S.P.A v. Yong Peng, et al., No. 

18 C 5385, R. 70 at 2; citing Rio Props., Inc., 284 F.3d at 1017-18. Here, unlike the defendant 

in Gianni Versace, Azzker has readily discoverable physical address listed on Amazon web 

page. Business Info., Exhibit 1. Moreover, the discoverable physical address is the true and 

correct address of Azzker. See Exhibit 2.

For the above stated reasons, Azzker has not been served with process in compliance 

with the Hague Service Convention as prescribed by the Federal Rules of Civil Procedure. 

Therefore, Azzker’s motion to dismiss Plaintiff’s Complaint should be granted with prejudice.
7

C. The Court should not grant preliminary injunction and unfreeze Azzker’s asset and 

account because Plaintiff’s Complaint should be dismissed for untimely service and 

improper service of process.

It is axiomatic that a federal court may issue an injunction only if it jurisdiction over the 

parties. See, e.g., Advanced Tactical, 751 F.3d at 800 (“In order for the district court’s preliminary

injunction to be valid, that court had to have personal jurisdiction over the defendant”) (citing e360 

Insight v. The Spamhaus Project, 500 F.3d 594, 598 (7th Cir. 2007) (“Default judgments rendered 

without personal jurisdiction are void and, therefore, we shall ‘set aside a default judgment as a per 

se abuse of discretion if the district court that entered the judgment lacked jurisdiction.’”)); Land-ONod Co. v. Bassett Furniture Indus., 708 F.2d 1338, 1340 (8th Cir. 1983) (confirming that the court 

must first have jurisdiction before it may exercise its discretion to issue an injunction); 11 Charles A. 

Wright & Arthur R. Miller, Federal Practice and Procedure § 2941 (1990) (“[T]he Court must have 

personal jurisdiction over the Party against whom equitable relief is sought”). As shown above, this 

Court cannot exercise personal jurisdiction over the Chinese defendant’s Amazon Store consistent 

with the United States and Illinois constitutions. 

As a result, the preliminary injunction should not be granted because Plaintiff’s complaint 

against Azzker should be dismissed for untimely service and improper service. At a minimum even 

if the motion is denied, the case for alleged infringement is weak and remains a live issue for 

summary judgment or trial. This undermines any likelihood of success supporting an injunction.

Dated: January 26, 2021 Respectfully submitted,

/s/ Tianyu Ju

Tianyu Ju

GLACIER LAW PLLC
8

200 E. Randolph Dr., Ste. 5100

Chicago, Illinois 60601

(Tel.): 626-727-8666

(Fax): 626-727-9666

Attorneys for Defendant
3

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this January 26, 2021, I electronically filed the foregoing 

with the Clerk of Court using the CM/ECF system, along with the attached Declaration and 

Exhibit 1-2, and service was perfected on all counsel of record and interested parties through 

this system, which will deliver a true and correct copy of the foregoing documents via 

CM/ECF.

Date: 01/26/2021

Respectfully Submitted: 

/s/ Tianyu Ju 

Tianyu Ju, Esq.

GLACIER LAW PLLC

200 E. Randolph Dr., Ste. 5100

Chicago, IL 60601

Attorney for Defendant