Opinion
No. 2:13-cv-02164-GMN-VCF
03-28-2014
BRIDGESTONE BRANDS, LLC, Plaintiff, v. QINGDAO ODYKING TIRE CO., LTD, DOES I through X; and ROE CORPORATIONS I through X, inclusive,
ORDER
This matter involves Plaintiff Bridgestone Brands, LLC ("Bridgestone's"), civil action for trademark counterfeiting, trademark infringement, trademark dilution, false advertising, and unfair competition arising under federal law. Before the court is Bridgestone's ex parte Statement Regarding Status of Service of Process on the Defendant.
DISCUSSION
Prior to discussing Bridgestone's Statement Regarding Status of Service of Process the court will briefly discuss the local rule governing ex parte motions.
A. Ex Parte Motions Under Local Rule 7-5(a)
As defined by Local Rule 7-5(a), an ex parte motion is a motion "filed with the Court, [that] is not served upon the opposing or other parties." See LR 7-5(a). The purpose of an ex parte motion is, therefore, to allow a party to communicate with the court privately. For this reason, ex parte motions must "contain a statement showing good cause why the matter was submitted to the Court without notice to all parties." LR 7-5(b). An ex parte motion should be made when a movant does not want a party or their opposing counsel to be served, not because the movant cannot serve the party within the time granted by the court. By filing the motion on an ex parte basis, Defendants will never be served with this document. See Black's Law Dictionary (9th ed. 2009), ex parte motion ("[A] motion that a court considers and rules on without hearing from all sides").
The Plaintiff's ex parte filing in this matter was inappropriate. Whether service of process is appropriately executed is a matter that affects a Defendant's due process rights under the Constitution. See Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir. 2013) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)) (stating that personal jurisdiction over a Defendant is conferred by compliance with Rule 4). A Defendant must be afforded an opportunity to challenge service if they believe that service was not executed in accordance with the Constitution's "traditional notions of fair play and substantial justice." See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The court finds no sufficient basis for the Plaintiff's filing to be submitted without notice to the parties.
B. The Court Takes Notice of Plaintiff's Statement Regarding Service Deadline
Pursuant to Federal Rule of Civil Procedure 4(m), a Plaintiff has 120 days after a complaint is filed to serve a Defendant. Fed. R. Civ. P. 4. However, subdivision m of Rule 4 expressly states that the 120 day provision does not apply to service of a Defendant in a foreign country under Rule 4(f) or 4(j)(1). Fed. R. Civ. P. 4. The Plaintiff alleges that the Defendant is a Chinese corporation, and thus Rule 4(m) may not apply. The Plaintiff's Statement Regarding Status of Service of Process on the Defendant will be part of the public record of this case.
ACCORDINGLY, and for good cause shown,
IT IS ORDERED that the Clerk remove the ex parte designation from Bridgestone's Statement Regarding Status of Service of Process on the Defendant (#12).
IT IS SO ORDERED.
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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE