The case of the day is Yates v. Cheung (N.D. Cal. 2012). Craig Yates, who uses a wheelchair, alleged that several businesses apparently located in a single building were not accessible to him. He asserted claims under the Americans With Disability Act and California law against the businesses and their landlords, Yee Mei Cheung, Tat Cheung, Wai Bing Cheung, and Young Ng Cheung, who apparently resided in China.
Craig’s lawyers sought and received leave to serve the Cheungs by publication after outlining its unsuccessful attempts to locate the Cheungs. After the notice was published, the Cheungs moved to dismiss, arguing that the service by publication was inadequate and arguing that the delay in service justified dismissal.
The judge correctly held that the Hague Service Convention, which the defendants cited, did not render the service by publication improper, because the defendants’ address was unknown. Moreover, the judge found that Craig had been diligent and that an extension of the 120-day period under FRCP 4(m) was warranted. The court might have gone on to note that FRCP 4(m) does not, strictly speaking, apply when the defendant resides abroad.
It’s worth pointing out that even if the court had found the service by publication insufficient for some reason, the Cheungs’ appearance in the case would have given the judge an easy way to order service on the Cheungs: service on their lawyer under FRCP 4(f)(3). If the plaintiff’s chosen method of service is clearly insufficient, then the foreign defendant’s best move is to run silent, run deep. Seeking dismissal where the service was clearly improper just exposes you to service through your lawyer. But if the plaintiff’s chosen method of service is arguably insufficient but not clearly insufficient, then the defendant is best off opposing it, as the Cheungs did here. Or else the defendant is best off saving its money and answering the complaint rather than objecting to the service.