United States District Court, N.D. Illinois, Eastern Division
December 15, 2005.
WANG XUDONG, Defendant.
The opinion of the court was delivered by: JOHN DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Doe, filed suit against Defendant, Wang Xudong,
alleging claims of torture; cruel, inhuman, and degrading
treatment; arbitrary arrest and detention; crimes against
humanity; deprivation of life, liberty, and security of person
and peaceful assembly and association; false imprisonment;
intentional infliction of emotional distress; and assault and
battery. Doe and Xudong are both citizens of the People's
Republic of China. Xudong is the Secretary of the Provincial
Committee of the Chinese Communist Party in Hebei province and
Minister to China's Ministry of Information Industry. Doe seeks
damages for violations of customary international law, laws of
the United States, and laws of the State of Illinois. Presently
before the Court is Doe's Motion for Entry of Default Judgment.
Federal Rule of Civil Procedure 55(a) provides for the entry of
default judgment against a party that has "failed to plead or
otherwise defend the case as provided by the rules and that fact
is made to appear by affidavit or otherwise. . . ."
Doe's Complaint was filed on June 17, 2004. On June 18, 2004, a
process server attempted to personally serve the Complaint and
Summons on Xudong. On that date, Xudong was attending a conference at the Hyatt Regency Hotel in Chicago, Illinois. The
process server went to the 33rd floor of the hotel where Xudong
was staying, where he was met by an individual guarding a door.
The process server asked the guard to hand the documents to
Xudong. The guard did not acknowledge whether Xudong was in the
room and refused to accept the documents, after which the process
server placed the documents on the floor next to the guard's
On June 19, 2004, certain individuals learned that Xudong would
be visiting Motorola, Inc., in Schaumburg, Illinois. As the
vehicle Xudong was believed to be in arrived at Motorola, several
individuals taped copies of the Complaint and Summons on the
vehicle. No one avers to have seen Xudong take any of the taped
documents off the vehicle.
On May 26, 2005, Doe sought, obtained leave, and filed an
Amended Complaint. On June 16, 2005, Doe mailed a copy of the
Amended Complaint and a letter informing Xudong of his need to
reply before June 12, 2005. The electronic delivery status report
of the Hong Kong Post indicates that the package was accepted and
signed for at Xudong's business address on June 20, 2005.
However, the Certificate of Posting indicates that the sender
22/F China Resources Building, Wnachai, Hong Kong
Grain & Oil Import & Export (HK) Corp.
In August 2005, Doe moved for entry of default judgment against
Xudong for Xudong's failure to file a responsive pleading. On
October 14, 2005, Doe attempted to deliver a copy of the Motion
for Entry of Default by Federal Express and the Hong Kong Post.
The deliveries were not accepted. In addition, both copies of the
motion were incomplete. On October 17, 2005, Doe attempted to
deliver a copy of the Amended Complaint to Xudong via Federal
Express; the delivery was not accepted. On October 31, 2005, Doe
attempted to deliver a complete copy of the Motion for Entry of Default on Xudong via the Hong Kong Post. The
delivery was not accepted. On November 14, 2005, another
individual attempted to have a copy of the Motion for Entry of
Default delivered to Xudong's office via United Parcel Service.
The package was not accepted. On November 21, 2005, two other
individuals attempted to have a copy of the Motion for Entry of
Default delivered to Xudong via Federal Express. Federal Express
could not deliver the packages to Xudong's office because of
security reasons, and Xudong refused to pick up the package at
Xudong has not filed any responsive pleadings in this Court,
and no attorney has filed an appearance on his behalf.
Valid service of process is a prerequisite to the district
court's assertion of personal jurisdiction. See Omni Capital
Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 103 (1987). A court
may (and perhaps must) sua sponte consider the issue of
personal jurisdiction when addressing the imposition of a default
judgment. See, e.g., System Pipe & Supply, Inc. v. M/V Viktor
Kurnatovskiy, 242 F.3d 322, 324 (5th Cir. 2001); Tuli v.
Republic of Iraq, 172 F.3d 707, 712 (9th Cir. 1999); Dennis
Garberg & Assoc., Inc. v. Pack-Tech Int'l Corp., 115 F.3d 767,
771-72 (10th Cir. 1997); Plaintiffs A, B, C, D, E, F v. Zemin,
2003 WL 22290409 (N.D. Ill. Oct. 6, 2003); First Nat. Bank of
Louisville v. Bezema, 569 F. Supp. 818, 819 (S.D. Ind. 1983).
Here, Doe attempted to serve Xudong while he was within
Illinois and while he was in China. Service of the summons and
complaint upon an individual within a judicial district of the
United States may be effected pursuant to the law of the state
where the district court is located or by delivering a copy of the summons and the complaint to the
individual personally or by leaving copies "at the individual's
dwelling house or usual place of abode with some person of
suitable age and discretion then residing therein. . . ."
Fed.R.Civ.P. 4(e)(1), (2).
Service of an individual within Illinois may be effected by a
person authorized to serve process by leaving a copy of the
summons with the defendant personally or by leaving a copy at the
defendant's usual place of abode with some person of the family
or a person residing there. 725 ILCS 5/2-202; 203(a).
Here, a process server attempted to personally serve Xudong at
his hotel. Xudong was not personally served. The process server
also left a copy of the Complaint and summons on the floor
outside a hotel room by a guard's feet. However, a hotel where
the defendant is a temporary guest is not a defendant's usual
place of abode. See White v. Primm, 36 Ill. 416 (1865).
Furthermore, Doe has failed to demonstrate that Xudong was
actually the guest in the hotel room or that the guard was a
person of Xudong's family or was residing in the hotel.
Furthermore, several individuals' act of taping envelopes
containing copies of the Complaint and summons to an automobile
believed to contain Xudong does not constitute personal delivery
to Xudong by an individual authorized to serve process. See
725 ILCS 5/2-202; 203(a).
Doe also attempted to serve Xudong with the Amended Complaint
via the Hong Kong Post when Xudong was in China. The validity of
service attempted abroad is controlled by the Hague Convention,
to the extent that the Hague Convention applies. See
Volkswagenwerk Atkiengesellschaft v. Schlunk, 486 U.S. 694, 705
(1988). The Hague Convention, ratified by the United States in 1965,
regularized and liberalized service of process in international
suits. The primary means by which service is accomplished is
through a receiving country's "Central Authority." See Hague
Convention, art. 2. The Hague Convention also provides that it
does not "interfere with" other methods of serving documents,
"Provided the State of destination does not object, the present
Convention shall not interfere with (a) the freedom to send
judicial documents, by postal channels, directly to persons
Convention, art 10(a); see also Brockmeyer v. May,
383 F.3d 798, 801-02 (9th Cir. 2004); Ackermann v. Levine, 788 F.2d 830,
838 (2nd Cir. 1986); Sibley v. Alcan, Inc.,
___ F. Supp. 2d ___, ___ (N.D.Oh. 2005) (2005 WL 3046460); Randolph v. Hendry,
50 F. Supp. 2d 572, 578 (S.D.W. Va. 1999); Eoi Corp. v. Medical
Marketing Ltd., 172 F.R.D. 133, 141 (D.N.J. 1997) (collectively,
holding that Article 10(a) includes service of summons by postal
Doe argues that service of the Amended Complaint was proper
pursuant to Federal Rule of Civil Procedure 5, rather than Rule
4, because the Amended Complaint did not contain any new
allegations. However, as discussed above, the original Complaint
and summons were not properly served pursuant to Rule 4;
accordingly, Doe cannot rely on Rule 5 for proper subsequent
service. Furthermore, irregardless of the rule, service by postal
channels is not valid as China declared its opposition to the
service of documents in its territory to the methods included in
Article 10, including postal channels. See Hague Convention,
Ancillary Laws and Directives, reprinted in U.S.C.S. on
International Agreements at 284. Doe argues that Xudong has waived or forfeited any proof of
service (jurisdictional) challenge by having actual notice of the
suit and not filing a motion challenging service. However, Doe
has moved for default judgment; and a defaulted party does not
waive or forfeit a jurisdictional challenge because he has not
typically failed to appear or file an answer. See Swaim v.
Molton Co., 73 F.3d 711, 717 (7th Cir. 1996). Furthermore, based
on the materials provided, Doe has not sufficiently demonstrated
that Xudong has had actual knowledge of the suit and/or has
continuously evaded service.
As set out above, Doe's first attempt of service was leaving a
copy of the summons and Complaint at the feet of a guard at a
room that Xudong may have been a guest. Doe's second attempt
was having protesters tape envelopes and/or copies of the
materials to a car that it was believed Xudong had occupied.
Doe's attempt to serve the Amended Complaint included mailing the
materials through the Hong Kong Post. However, because service
was attempted abroad, Doe had to provide service pursuant to the
Hague Convention. Doe does not argue that service was attempted
in this manner or that the Hague Convention was even considered
to determine how service should be effected. Furthermore, the
translation of the proof of delivery indicates that the mailing
was sent by an individual of the Grain & Oil Import & Export (HK)
Corporation. Doe does not explain why the proof of delivery is
for a mailing from this company within China. The Court
acknowledges Doe's frustration with attempting service on a
foreign defendant, but avoiding such difficulties was one of the
main purposes of the Hague Convention. See Brockmeyer,
383 F.3d at 801. Based on the above, Doe has not demonstrated that Xudong
has evaded service in such a manner that improper service can be
excused. See Robinson Eng'g Co. v. George, 223 F.3d 445, 452-53
(7th Cir. 2000) (plaintiff failed to demonstrate that defendant
evaded service to excuse improper service). Because Doe has failed to demonstrate that
Xudong has been properly served, the Court lacks jurisdiction
over Xudong; and Doe's Motion for Entry of Default Judgment is
For the reasons stated above, Doe's Motion for Entry of Default
Judgment is denied.
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