Case: 21-165 Document: 20 Page: 1 Filed: 09/10/2021

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

In re: ONEPLUS TECHNOLOGY (SHENZHEN) CO., LTD., Petitioner ______________________

2021-165 ______________________

On Petition for Writ of Mandamus to the United States District Court for the Western District of Texas in Nos. 6:20-cv-00952-ADA, 6:20-cv-00953-ADA, 6:20-cv-00956- ADA, 6:20-cv-00957-ADA, and 6:20-cv-00958-ADA, Judge Alan D. Albright. ______________________

ON PETITION AND MOTION ______________________

Before LOURIE, BRYSON, and TARANTO, Circuit Judges. PER CURIAM. ORDER OnePlus Technology (Shenzhen) Co., Ltd. (“OnePlus”) petitions for a writ of mandamus directing the United States District Court for the Western District of Texas to dismiss the five underlying patent infringement actions for insufficient service of process and lack of personal jurisdic- tion. WSOU Investments LLC d/b/a Brazos Licensing and Development (referred to here as “Brazos”) opposes. Case: 21-165 Document: 20 Page: 2 Filed: 09/10/2021

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OnePlus also moves for oral argument. TP-Link Technolo- gies Co., Ltd. (“TP-Link”) moves with opposition for leave to file an out-of-time brief amicus curiae in support of OnePlus. We begin with the familiar proposition that mandamus is an exceptional remedy that is granted only if the right at issue is “clear and indisputable.” See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 381 (2004); In re TS Tech USA Corp., 551 F.3d 1315, 1318–19 (Fed. Cir. 2008). After stud- ying the complex interaction of rules of state and federal civil procedure implicated by this case, we are not per- suaded that the petitioner’s right is clear and indisputable. We therefore deny the petition. 1. In September 2020, Brazos filed five related patent infringement actions in the United States District Court for the Western District of Texas against OnePlus, a Chi- nese company. Brazos alleged that OnePlus has no place of business or employees in the United States. Although the People’s Republic of China is a signatory to the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Com- mercial Matters, 20 U.S.T. 361 (Nov. 15, 1965) (“the Hague Convention”), Brazos elected not to attempt service on OnePlus by invoking the Hague Convention. Instead, cit- ing the burdens involved in effecting service through Hague Convention procedures, Brazos requested that the district court grant it leave under Fed. R. Civ. P. 4(f)(3) to use alternative methods to effect service. The court granted the motion, and Brazos served the complaint and summons on attorneys who had represented OnePlus in the past and on OnePlus’s authorized agent for service in Hayward, California. OnePlus made a special appearance in the case to chal- lenge the sufficiency of the service and the court’s jurisdic- tion over it. The district court rejected the challenge, holding that Rule 4(f)(3) gave it discretion to order service Case: 21-165 Document: 20 Page: 3 Filed: 09/10/2021

IN RE: ONEPLUS TECHNOLOGY (SHENZHEN) CO., LTD. 3

of a foreign defendant by means other than those pre- scribed by the Hague Convention, and that the service was effective to grant the court in personam jurisdiction over OnePlus. OnePlus now seeks a writ of mandamus compel- ling the district court to vacate its order authorizing alter- native service and requiring that Brazos effect service pursuant to Hague Convention procedures. 2. Rule 4(k)(1)(A) of the Federal Rules of Civil Proce- dure provides that serving a summons establishes personal jurisdiction over a defendant “who is subject to the juris- diction of a court of general jurisdiction in the state where the district court is located.” Rule 4(h)(1) in turn provides for service of a corporation in a judicial district of the United States “in the manner prescribed by Rule 4(e)(1) for serving an individual” or by delivering a copy of the sum- mons and complaint to an officer or agent of the corpora- tion. Rule 4(h)(2) provides for serving a corporation “at a place not within any judicial district of the United States, in any manner provided by Rule 4(f) for serving an individ- ual except personal delivery.” Rule 4(e)(1), which is di- rected to “serving an individual within a judicial district of the United States,” provides that an individual may be served, among other ways, by following state law for serv- ing a summons in an action brought in the courts of general jurisdiction in the state where the district court is located. Rule 4(f), which is directed to “serving an individual in a foreign country,” provides that an individual “may be served at a place not within any judicial district of the United States” in one of three ways: (1) by any internationally agreed means of ser- vice that is reasonably calculated to give notice, such as 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 Case: 21-165 Document: 20 Page: 4 Filed: 09/10/2021

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not specify other means, by a method that is rea- sonably 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; (B) as the foreign authority directs in re- sponse to a letter rogatory or letter of re- quest; or (C) unless prohibited by the foreign coun- try’s law; or (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 indi- vidual and that requires a signed re- ceipt; or (3) by other means not prohibited by interna- tional agreement, as the court orders. The Hague Convention applies in civil or commercial cases in which judicial or extrajudicial documents are transmitted for service abroad. Under the Convention, to which both China and the United States are signatories, each member state provides a “central authority” that is responsible for receiving and effecting service from abroad consistent with the member state’s domestic policies. 3. The petition seeks mandamus on three related grounds: first, that the service in this case was ineffective; second, that as a result of the ineffective service, the dis- trict court lacked in personam jurisdiction over OnePlus; and third, that it was an abuse of discretion for the district court to authorize alternative service in this case in the ab- sence of a showing of a need to do so. Case: 21-165 Document: 20 Page: 5 Filed: 09/10/2021

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a. The jurisdictional argument is as follows: Article 1 of the Hague Convention provides that the Convention “shall apply” to all cases in which “there is occasion to transmit a judicial or extrajudicial document for service abroad.” To determine whether a case creates an occasion to transfer a judicial document abroad, courts are required “to look to the method of service prescribed by the internal law of the forum state.” Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d 533, 536–37 (5th Cir. 1990). Because un- der Rule 4(k)(1)(A), service of a summons establishes juris- diction over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the dis- trict court is located, OnePlus argues that the district court has jurisdiction only if OnePlus is subject to jurisdiction in Texas under the Texas long-arm statute. OnePlus further argues that the Texas long-arm statute requires the trans- mittal of documents abroad to a foreign defendant. See Tex. Civ. Prac. & Rem. Code Ann. § 17.045. Because valid service under Texas law requires the transmittal of docu- ments abroad and triggers the Hague Convention, OnePlus contends that there was no valid service in this case and that the district court therefore lacked jurisdiction over OnePlus. The problem with OnePlus’s jurisdictional argument is that it runs up against this court’s decision in Nuance Com- munications, Inc. v. Abbyy Software House, 626 F.3d 1222 (Fed. Cir. 2010). In that case, we rejected the defendants’ argument that service authorized by a court under Rule 4(f)(3) did not establish personal jurisdiction over the de- fendants because it did not satisfy the service provisions of the forum state’s long-arm statute. We wrote that the de- fendants’ argument “confuses service of process under Rule 4(f)(3), which provides for court-directed service ‘by any means not prohibited by international agreement,’ with service under Rule 4(e)(1), which does not require a court- order and provides for service by ‘following state law.’” Id. at 1240. The restrictions on service under California law, Case: 21-165 Document: 20 Page: 6 Filed: 09/10/2021

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we held, did not “foreclose substituted service on others un- der Rule 4(f)(3).” Id. OnePlus’s reliance on the service re- quirements of the Texas long-arm statute appears contrary to this court’s analysis in Nuance Communications. 1 b. OnePlus’s second argument is that Rule 4(f) by its terms applies only to service of process effected abroad, and that the district court’s order authorizing service in this country was therefore invalid. Once again, the Nuance Communications case presents an obstacle for OnePlus. The court in that case rejected the argument that Rule 4(f)(3) cannot be used to authorize alternative service that is effected within the United States. See 626 F.3d at 1239. OnePlus again argues that the court in Nuance Communi- cations was merely following Ninth Circuit law in that re- gard. However, OnePlus points to no contrary Fifth Circuit precedent on that issue, and the fact that the Ninth Circuit and a number of district courts have construed Rule 4(f)(3) in that manner is sufficient to show that the construction for which OnePlus advocates is not “clear and indisputa- ble.” We therefore decline to issue mandamus based on that argument. c. OnePlus’s final argument is that the district court committed a clear abuse of discretion by authorizing alter- native service under Rule 4(f)(3) even though Brazos made no showing that service under the Hague Convention had been tried and failed, would have been unlikely to succeed, or was otherwise impracticable. The district court

1 OnePlus dismisses Nuance Communications on the ground that it was applying Ninth Circuit law, and that Fifth Circuit law applies to this case. But OnePlus does not point to any Fifth Circuit authority that is contrary to Nuance Communications on this issue. The Sheets case, on which OnePlus relies, did not involve court-authorized ser- vice under Rule 4(f)(3) and is therefore inapposite. Case: 21-165 Document: 20 Page: 7 Filed: 09/10/2021

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authorized alternative service because it regarded the Hague Convention procedure as slow and expensive. 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. Rule 4(f)(3) was not meant to displace the other rules for service in every in- stance in which alternative means of service are seen as more convenient. By the same token, however, Rule 4(f)(3) is not a “last resort” or a type of “extraordinary relief” for a plaintiff seeking to serve process on a foreign defendant. See Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). To the contrary, “Rule 4(f)(3) is not subsumed within or in any way dominated by Rule 4(f)’s other subsections; it stands independently, on equal foot- ing.” Nuance Communications, 626 F.3d at 1239 (quoting Rio Props., 284 F.3d at 1015)); see 4B Charles Alan Wright et al., Federal Practice & Procedure § 1134, at 274 (2015) (“The use of a court-directed means for service of process under Rule 4(f)(3) is not a disfavored process and should not be considered extraordinary relief.”). Moreover, courts have recognized that delay and ex- pense are factors that legitimately bear on whether to issue an order for alternative service. See SIMO Holdings, Inc. v. Hong Kong uCloudlink Network Tech. Ltd., No. 2:20-CV- 3, 2020 WL 6578411 (E.D. Tex. June 15, 2020); WorldVen- tures Holdings, LLC v. Mavie, No. 4:18-CV-393, 2018 WL 6523306, at *14 (E.D. Tex. Dec. 12, 2018); Fundamental In- novation Sys. Int’l, LLC v. ZTE Corp., No. 3:17-CV-1827, 2018 WL 3330022, at *15 (N.D. Tex. Mar. 16, 2018); Affin- ity Labs of Tex., LLC v. Nissan N. Am. Inc., No. WA:13-CV- 369, 2014 WL 11342502, at *3 (W.D. Tex. July 2, 2014); Baker Hughes, Inc. v. Homa, Civ. A. H-11-3757, 2012 WL 1551727, at *16–17 (S.D. Tex. Apr. 30, 2012). Case: 21-165 Document: 20 Page: 8 Filed: 09/10/2021

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To be sure, courts have typically invoked Rule 4(f)(3) only when special circumstances have justified departure from the more conventional means of service. Nonetheless, while some courts, in the exercise of their discretion, have looked to whether there has been a showing that the plain- tiff has reasonably attempted to effectuate service on the defendant by conventional means and have required a showing that the circumstances render the court’s inter- vention necessary, “those considerations guide the exercise of discretion, and are not akin to an exhaustion require- ment.” In re BRF S.A. Sec. Litig., No. 18-cv-2213, 2019 WL 257971, at *2 (S.D.N.Y. Jan. 18, 2019) (citing cases). Given the broad discretion accorded to district courts in determining whether to grant relief under Rule 4(f)(3), we conclude that issuing the extraordinary writ of manda- mus is not called for in this case. The district court has not announced that it intends to order alternative service in every case in which more conventional means of service would be merely inconvenient, and in fact the record re- flects that the district court has not granted relief under Rule 4(f)(3) in all such cases. On the present record, we decline to find a clear abuse of discretion that would justify the issuance of a writ of mandamus. 2 Accordingly, IT IS ORDERED THAT: (1) TP-Link’s motion is granted. ECF No. 7-2 is ac- cepted for filing. (2) The petition is denied. (3) The motion for oral argument is denied.

2 Our order denying mandamus does not foreclose OnePlus from raising its arguments on appeal from a final judgment against it. Case: 21-165 Document: 20 Page: 9 Filed: 09/10/2021

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FOR THE COURT

September 10, 2021 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court

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