Motion-Secondary: Mw Gestion, Derivatively On Behalf Of Nominal Defendant Global Cord Blood Corporation, Mw Optimum, Derivatively On Behalf Of Nominal Defendant Global Cord Blood Corporation v. Cellenkos Inc., Golden Meditech Holdings Limited, Ting Tina Zheng, Albert Chen, Yuen Kam, Mark Da-Jian Chen, Jennifer J. Weng, Ken Lu, Jack Chow, Jacky Cheng, Golden Meditech Stem Cells (Bvi) Company Limited, Gm Precision Medicine (Bvi) Limited, Golden Meditech (Bvi) Company Limited, Easton Capital Corp., Redwood Valuation Partners

On January 05, 2022 a Motion-Secondary was filed involving a dispute between Mw Gestion, Derivatively On Behalf Of Nominal Defendant Global Cord Blood Corporation, Mw Optimum, Derivatively On Behalf Of Nominal Defendant Global Cord Blood Corporation, and Albert Chen, Cellenkos Inc., Easton Capital Corp., Gm Precision Medicine, Golden Meditech, Jack Chow, Jacky Cheng, Jennifer J. Weng, Ken Lu, Mark Da-Jian Chen, Redwood Valuation Partners, Ting Tina Zheng, Yuen Kam, for Commercial - Other - Commercial Division in the District Court of New York County.

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INDEX NO. 653598/2023
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

MW GESTION and MW OPTIMUM,
derivatively on behalf of nominal defendant
GLOBAL CORD BLOOD
CORPORATION,
Index No. 653598/2023
Plaintiffs,
Hon. Andrea Masley

Vv. Part 48

GOLDEN MEDITECH HOLDINGS Mot. Seq. No.
LIMITED, TING (TINA) ZHENG, ALBERT
CHEN, YUEN KAM, MARK DA-JIAN ORAL ARGUMENT REQUESTED
CHEN, JENNIFER J. WENG, KEN LU,
JACK CHOW, JACKY CHENG,
CELLENKOS INC., GOLDEN MEDITECH
STEM CELLS (BVI) COMPANY LIMITED,
GM PRECISION MEDICINE (BVI)
LIMITED, GOLDEN MEDITECH (BVI)
COMPANY LIMITED, EASTON CAPITAL
CORP., and REDWOOD VALUATION
PARTNERS,

Defendants.

MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR ALTERNATIVE SERVICE

WHITE & CASE LLP

David Hille
Robert Tiedemann
1221 Avenue of the Americas
New York, NY 10020-1095
(212) 819-8200
Attorneys for Defendants Mark Chen
and Jennifer Weng

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TABLE OF CONTENTS

Page(s)

PRELIMINARY STATEMENT

FACTUAL BACKGROUND

ARGUMENT

I PLAINTIFFS HAVE MADE NO SHOWING THAT SERVICE PURSUANT
TO THE METHODS PROVIDED BY NEW YORK LAW IS
IMPRACTICABLE
A The Hague Convention Controls Service Over The Non-U.S.
Defendants
B Plaintiffs Fail to Establish that Service Pursuant to the Hague
Convention is Impracticable
IL PLAINTIFFS’ PROPOSED METHODS OF ALTERNATIVE SERVICE ARE
IMPROPER. 10
A Alternative Service by Email Should Be Denied 10
B Alternative Service through Defendants’ Counsel Should be Denied 11
Til. Plaintiffs’ Request for an Extension of Time for Service is Not Warranted. 12
CONCLUSION 13

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TABLE OF AUTHORITIES

Page(s)
CASES

Abrams v. Lurie,
176 A.D.2d 474 (1st Dep’t 1991)

Alfred E. Mann Living Tr. v. ETIRC Aviation S.a.r.1.,
78 A.D.3d 137 (Ist Dep’t 2010) 5,8

Amaprop Ltd. v. Indiabulls Fin. Servs. Ltd.,
2012 WL 4801452 (S.D.N.Y. Oct. 5, 2012) 11

Arbeeny v. Kennedy Exec. Search, Inc.,
31 Misc. 3d 494 (Sup. Ct. N.Y. Cty. 2011)
Broman vy. Stern,
172 A.D.2d 475 (2d Dep’t 1991) 11

Bumpus v. New York City Transit Auth.,
66 A.D.3d 26 (2d Dep’t 2009) 12

CanWest Glob. Commc’ns Corp. v. Mirkaei Tikshoret,
2005 WL 6082564 (Sup. Ct. N.Y. Cty. 2005)
Convergen Energy LLC v. Brooks,
2020 WL 4038353 (S.D.N.Y. July 17, 2020) 9, 11,12

David v. Total Identity Corp.,
50 A.D.3d 1484 (4th Dep’t 2008)

Dime Sav. Bank of N.Y. v. Mancini,
169 A.D.2d 964 (3d Dep’t 1991)

Elsevier, Inc. v. Siew Yee Chew,
287 F.Supp.3d 374 (S.D.N.Y. 2018).

Facebook, Inc. v. 9 Xiu Network (Shenzhen) Tech. Co.,
480 F. Supp. 3d 977 (N.D. Cal. 2020) 10

Fontanez v. PV Holding Corp.,
182 A.D.3d 423 (1st Dep’t 2020)

Franklin v. Winard,
189 A.D2d 717 (Ist Dep’t. 1993)

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Giordano v. McMurtry,
79 A.D.2d 548 (1st Dep’t 1980), aff’d, 53 N.Y.2d 962 (1981)
Glauber v. Wolff;
2020 WL 3317011 (Sup. Ct. N.Y. Cty. June 16, 2020)

Goldfarb v. Channel One Russia, et al.,
2018 WL 11225240 (S.D.N.Y. Oct. 19, 2018)

Henneberry v. Borstein,
91 A.D.3d 493 (Ist Dep’t 2012) 12

Hollow v. Hollow,
193 Misc. 2d 691 (Sup. Ct. Oswego Cty. 2002)
Hotel Portfolio II Uk Ltd. v. Ruhan,
2023 WL 6290940 (Sup. Ct. N.Y. Cty. Sep. 21, 2023)
In re Petrobras Sec. Litig.,
2015 WL 10846515 (S.D.N.Y. Nov. 2, 2015)

Invar Int'l, Inc. v. Zorlu Enerji Elektrik Uretim Anonim Sirketi,
86 A.D.3d 404 (Ist Dep’t 2011)
Joseph II. V. Luisa JJ.,
201 A.D.3d 43 (3d Dep’t 2021) 5,6

JPMorgan Chase Bank, N.A. v. Kothary,
178 A.D.3d 791 (2d Dep’t 2019)

Korea Deposit Ins. Co. v. Jung,
59 Misc. 3d 442 (Sup. Ct. N.Y. Cty. 2017)
Liebeskind v. Liebskind,
86 A.D.2d 207 (1st Dep’t. 1982)
Lowenfeld v. Fakty,
2008 WL 2937182 (Sup. Ct. N.Y. Cty. July 17, 2008) 6,8

Markoffv. S. Nassau Cmty. Hosp.,
61 N.Y.2d 283 (1984) (superseded on other grounds)

Morgenthau v. Avion Res. Ltd.,
11 N.Y.3d 383 (2008)

Mut. Benefits Offshore Fund vy. Zeltser,
140 A.D.3d 444 (1st Dep’t 2016)

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Simens v. Sedrish,
82 A.D.2d 915 (2d Dep’t 1981)

Sintec Media Ltd. v. Televisa, S.A. de C.V.,
2019 WL 4804210 (Sup. Ct. N.Y. Cty. Oct. 1, 2019)

Smart Study Co. v. Acuteye-Us,
620 F. Supp. 3d 1382 (S.D.N.Y. 2022),
appeal dismissed sub nom. Smart Study Co. v. HAPPY PARTY-001,
2023 WL 3220461 (2d Cir. May 3, 2023) 5, 10

State Street Bank and Trust Co. v. Coakley,
16 A.D.3d 403 (2d Dep’t 2005)

Tetro v. Tizov,
184 A.D.2d 633 (2d Dep’t 1992)

Volkswagenwerk Aktiengesellschaft v. Schlunk,
486 U.S. 694 (1988)

VPN.Com LLC v. Dikian,
2022 WL 17371064 (C.D. Cal. Sept. 8, 2022)

Water Splash, Inc. v. Menon,
581 U.S. 271 (2017)

Yamamoto v. Yamamoto,
43 A.D.3d 372 (1st Dep’t 2007) 5,11

RULES

CPLR 306-b 12

CPLR 308 (1), (2) and (4).
CPLR 308(5) passim

Fed. R. Civ. P. 4(£)(3) 11,12

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Defendant Mark Chen respectfully submits this memorandum of law in opposition to

Plaintiffs’ motion for alternative service pursuant to CPLR 308(5) (“Plaintiffs’ Motion”).!

PRELIMINARY STATEMENT

Plaintiffs’ Motion seeking “alternative service” should be denied. Contrary to Plaintiffs’

unsupported suggestion, no Defendant has “evaded” service in this action. Rather, Plaintiffs’

meager showing on this Motion demonstrates only that Plaintiffs, for their own convenience,

would prefer not to fulfill the well-established, treaty requirements of effecting service over non-

USS. residents in this international litigation.

Plaintiffs, a French and a Luxembourgian entity (who lack standing to even pursue their

claims),? commenced this action in New York notwithstanding that it concerns claims governed

by Cayman Islands law, belonging to nominal defendant Global Cord Blood Corporation

(“GCBC”), a Caymans Islands company based in Hong Kong, that is currently subject to

liquidation proceedings brought in a Cayman Islands court. As Plaintiffs well know, the

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial

Matters (the “Hague Convention”) governs service on Defendant Mark Chen, along with the other

unserved independent director defendants, because each of them resides in China or Hong Kong.

Plaintiffs fail to meet their burden of establishing that service is “impracticable” under the

governing Hague Convention. Plaintiffs’ arguments for being excused from effecting service

under the Hague Convention rest merely on conclusory assertions that such process is “lengthy

' As Plaintiff previously filed an (incorrect) affidavit of service as to Mark Chen (NYSCEF No. 10), Mr. Chen
appeared and moved to dismiss the complaint, inter alia, for lack of service and lack of personal jurisdiction.
(NYSCEF No. 97). As Plaintiffs admit, three other independent, non-executive director (“INED”) Defendants, Ken
Lu, Jacky Cheng and Jack Chow, also have not been served. Given their similar circumstances and residences outside
the U.S., Plaintiffs’ Motion for alternative service against Defendants Lu, Cheng and Chow fail for substantially the
same reasons raised by Mr. Chen in this opposition.
? Plaintiffs, who are not registered shareholders of the underlying company, lack standing to assert their purported
derivative claims for the reasons set forth in the Motion to Dismiss the Derivative Complaint brought by Mark Chen
and Jennifer Weng, and joined by all co-Defendants who have been served and appeared. (NYSCEF No. 97).

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and uncertain.” Numerous courts, in New York and elsewhere, have rejected such bare complaints.

Indeed, Plaintiffs fail to establish that they have even attempted to complete service under the

Hague Convention, much less that they were somehow blocked or frustrated from doing so.

Although it is not necessary to reach the issue, Plaintiffs’ proposed forms of alternative

service also are improper. New York courts have rejected motions for substituted service through

attorneys where, as here, the attorneys have not been authorized by the client to accept service and

service remains available under the Hague Convention. In addition, email service on an individual

residing in China is improper because China has not accepted email service under the Hague

Convention.

FACTUAL BACKGROUND

A. Plaintiffs’ Incomplete Effort To Effect Service Under the Hague Convention

Plaintiffs know how to effect service on non-U.S. defendants under the Hague Convention.

As set forth in the Affirmation of Michael Grunfeld in Support of Plaintiffs’ Motion for Alternative

Service,? Plaintiffs “retained the Shreefer Law Firm, LLC (“‘Shreefer”), a firm that specializes in

international service of process,” and Veriton Investigations in Hong Kong, to assist in locating

service addresses for the non-U.S. defendants and to effectuate service under the Hague

Convention. Grunfeld Aff. 20-21. All the Court is told is that on September 1, 2023, Shreefer

allegedly “commenced service through the Hague Convention” on the “Alternative Service

Defendants,” /d. {| 21, whom Plaintiffs define as Defendants Zheng, Albert Chen, Kam, Lu Chow

and Cheng. Pl. Br. at 6.

Plaintiffs’ showing stops there. Plaintiffs do not assert that any effort was made to serve

3 Citations in the form of “Grunfeld Aff. /__” refer to paragraphs of the Grunfeld Affirmation. (NYSCEF No. 22).
Citations in the form of “PI. Br. at__” refer to the Memorandum of Law in support of Plaintiffs’ Motion for Alternative
Service Pursuant to CPLR 308(5). (NYSCEF No. 33). In accordance with Rule 5(A) of the Commercial Division
Part 48 Procedures, pincites to the Memorandum of Law reference the NYSCEF page number.

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Mr. Chen under the Hague Convention. Plaintiffs make no showing at all how service as to each

individual was sought, what steps in the past were taken, what steps in the future are required,

what filings or communications occurred, or what, if any, responses were received. Plaintiffs do

not identify a single obstacle, impediment or unusual circumstance that would hinder, delay or

obstruct completion of service under the Hague Convention—much less demonstrate the requisite

impracticability necessary to justify seeking alternative service in the first place.*

B. Plaintiffs’ Have Not Served Mr. Chen in New York

Plaintiffs have failed to effect service on Mr. Chen, who does not reside in New York. Mr.

Chen resides in China, has not lived in New York since 2005, and has never resided at the New

York apartment where Plaintiffs purported to make service on him. Chen Aff, §§] 3-4, 9.° Indeed,

Plaintiffs’ Motion included an exhibit with multiple non-U.S. service addresses listed for Mr.

Chen. (NYSCEF No. 30 at 2). Mr. Chen has not been served (in China or elsewhere), agreed to

accept service, or authorized anyone to accept service on his behalf. Chen Aff. fff 14-15. Asa

result, before Plaintiffs filed their Motion, Mr. Chen filed a motion to dismiss on the grounds of,

inter alia, lack of service and lack of personal jurisdiction generally. (NYSCEF No. 97). Briefing

on that motion to dismiss continues, and the motion has a return date of January 29, 2024.

Although Plaintiff now moves for leave to effect alternative service on Mr. Chen,

Plaintiffs’ Motion nonetheless suggests that service may have been made on Mr. Chen in New

4 Plaintiffs’ inadequate showing is not limited to Mr. Chen or the other INED Defendants who have not been served
(Messrs. Lu, Cheng and Chow), but also contains no particularized discussion of the efforts to serve the additional,
non-U.S. defendants—Ting (Tina) Zheng, Albert Chen and Yuen Kam. For this reason, during the telephone call with
Plaintiffs’ counsel on October 11, 2023, Mr. Hille of White & Case explained to Plaintiffs’ counsel that even if the
INED Defendants had authorized White & Case to accept service (and they had not), the case status would not change,
nor be “prolonged,” as Plaintiffs still needed to take the steps necessary to serve the multiple, other non-U.S. based
defendants for whom White & Case is not counsel. See (NYSCEF No. 32 at 3).
5 Citations in the form of “Chen Aff. __” refer to paragraphs of the Affirmation of Mark Chen in Support of Motion
to Dismiss the Derivative Complaint (NYSCEF No. 134), which was re-filed as Exhibit 1 to the Affirmation of Robert
Tiedemann. (NYSCEF No. 133).

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York, incorrectly arguing that Mr. Chen may live at the New York apartment of Defendant Jennifer

J. Weng, where service upon Mr. Chen was attempted. To the contrary, the affirmation submitted

by Mr. Chen and the Affidavit of Jennifer J. Weng® establish that (i) although married, they have

been separated and living apart since 2014 (on separate continents), (ii) Mr. Chen has never resided

at Ms. Weng’s New York apartment, and (iii) Mr. Chen has no ownership or other interest in such

apartment. (Chen Aff. §{] 7-9; Weng Aff. 2-4). Although Plaintiffs submit a photograph of the

names “Weng/Chen” listed on the building directory for that apartment, this is only because their

two adult children who live with Ms. Weng at the apartment use the surname Chen. Weng Aff. ¥ 5.

ARGUMENT

I PLAINTIFFS HAVE MADE NO SHOWING THAT SERVICE PURSUANT TO
THE METHODS PROVIDED BY NEW YORK LAW IS IMPRACTICABLE

Plaintiffs are required to serve Mr. Chen (and the other unserved INEDs) pursuant to the

Hague Convention or to meet their burden to demonstrate why serving them pursuant CPLR 308

(1), (2) and (4) would be “impracticable.” CPLR 308(5). Plaintiffs’ Motion should be denied

because they have not demonstrated sufficient efforts to serve Mr. Chen (or the other unserved

INEDs) under the Hague Convention and have not remotely established that such service is

impracticable.

A The Hague Convention Controls Service Over The Non-U.S. Defendants

China and Hong Kong—the foreign jurisdictions where the unserved INED defendants

Chen, Lu, Chow and Cheng reside (PI. Br. at 14)—are parties to the Hague Convention. 20 U.S.T.

361. “The primary innovation of the [Hague] Convention is that it requires each state to establish

a central authority to receive requests for service of documents from other countries.”

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Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988). The New York Court

of Appeals has long recognized that the Hague Convention “is the supreme law of the land and its

service requirements are mandatory.” Morgenthau v. Avion Res. Ltd., 11 N.Y.3d 383, 390 (2008)

(emphasis added); The Hague Convention’s specific approved methods of service “pre-empt[]

inconsistent methods of service.” Water Splash, Inc. v. Menon, 581 U.S. 271, 273 (2017); see also

Schlunk, 486 U.S. at 705 (same); Alfred E. Mann Living Tr. v. ETIRC Aviation S.a.r.1., 78 A.D.3d

137, 140 (1st Dep’t 2010) (“[T]he Convention, including its service requirements, must be treated

as the law of the land.”). Given its status, “the systemic comity interests embodied in the [Hague]

Service Convention shouldn't be sacrificed in the name of concrete case management

concerns.” Smart Study Co. v. Acuteye-Us, 620 F. Supp. 3d 1382, 1402 (S.D.N.Y. 2022), appeal

dismissed sub nom. Smart Study Co. v. HAPPY PARTY-001, 2023 WL 3220461 (2d Cir. May 3,

2023) (citation and quotation omitted).

Accordingly, New York courts only permit parties to avoid service under the Hague

Convention by alternative, court-directed means upon an evidentiary showing by movant that

service through the Hague Convention would be “impracticab[le]” under CPLR 308(5). Jnvar

Int'l, Inc. v. Zorlu Enerji Elektrik Uretim Anonim Sirketi, 86 A.D.3d 404, 405 (1st Dep’t 2011);

Fontanez v. PV Holding Corp., 182 A.D.3d 423, 423 (1st Dep’t 2020) (finding Hague Convention

service impracticable where it would be “futile”).’? The test “requires the movant to make

competent showings as to actual efforts made to effect service.” Joseph II. V. Luisa JJ., 201

7 See also Mut. Benefits Offshore Fund y. Zeltser, 140 A.D.3d 444, 446 (Ist Dep’t 2016) (“the only way to serve those
parties is through the tral authority’ that Switzerland has established pursuant to the Convention” and counterclaim
plaintiffs have not “shown that service through Switzerland's central authority would be too costly or otherwise
‘impracticable.””) (citation omitted); Yamamoto v. Yamamoto, 43 A.D.3d 372, 373 (1st Dep’t 2007) (affirming denial
of motion to serve defendant’s counsel in light of Convention “procedures in place for effectuating service upon
defendant in Japan” and the lack of “any evidence that service in that manner is ‘impracticable”’); oe Abrams v. Lurie,
176 A.D.2d 474, 474-75 (Ist Dep’t 1991) (“It remains a requirement that some manner of showing be made that a
customary method of service is ‘impracticable’.”).

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A.D.3d 43, 44 (3d Dep’t 2021). Absent a showing of impracticability, it is “well settled” that

courts are “[fJundamentally ... without power” to authorize alternative service. Hollow v. Hollow,

193 Misc. 2d 691, 693 (Sup. Ct. Oswego Cty. 2002) (citing Dime Sav. Bank of N.Y. v. Mancini,

169 A.D.2d 964 (3d Dep’t 1991).
B. Plaintiffs Fail to Establish that Service Pursuant to the Hague Convention is
Impracticable

Plaintiffs do not purport to have unsuccessfully attempted service through the Hague

Convention and cannot identify any fact or circumstance that would hinder, delay or obstruct

service under the Hague Convention. See Factual Background, Section A, supra. Rather,

Plaintiffs’ purported showing of impracticability consists of nothing more than (i) a single

misguided effort to serve Mr. Chen in New York—in a state and country where he does not

reside—and, (ii) Plaintiffs’ bare apprehension that “there is uncertainty whether the service being

attempted through the Hague Convention will be successful or how long it will take to complete.”

Pl. Br. at 15.

Such conclusory arguments that service under the Hague Convention might be “lengthy

and uncertain” (PI. Br. at 24) fall far short of the required showing that compliance with the Hague

Convention would be impracticable. See, e.g., Lowenfeld v. Fakty, 2008 WL 2937182, at *4-5

(Sup. Ct. N.Y. Cty. July 17, 2008) (plaintiffs’ “unsubstantiated assertion[]” that legislation in

signatory country made Hague Convention service “virtually impossible” held insufficient to

justify alternative service); Luisa JJ., 201 A.D.3d at 44 (denying alternative service where “only

proof submitted by plaintiff was an email” estimating that Hague Convention service in Italy

8 As the court in Glauber v. Wolff explained, “a survey of recent cases where the Court found that traditional forms of
service were ‘impracticable’ involve ... either plaintiffs who made efforts to serve defendant to no avail or out-of-
country defendants with no forwarding address or with an unclear residence,” involving “factual circumstances very
different from this case.” 2020 WL 3317011, at *4 (Sup. Ct. N.Y. Cty. June 16, 2020) (internal citations omitted).

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would take approximately 18 to 20 weeks); Simens v. Sedrish, 82 A.D.2d 915, 916 (2d Dep’t 1981)

(assertions that a predecessor-in-interest “had difficulties serving defendant... and that [plaintiff]

anticipated having difficulties as well” held to be insufficient); Markoffv. S. Nassau Cmty. Hosp.,

61 N.Y.2d 283, 287 n.2 (1984) (claim that service was “impracticable ... without specifying why

or that prior attempts were made, was insufficient to justify the order of expedient service”)

(superseded on other grounds).

Rather, New York law is clear that a defendant's mere “reside[nce] in a foreign country

d[oes] not, by itself, relieve the plaintiff[s] of [their] obligation to make a reasonable effort to

effectuate service in a customary manner before seeking relief[.]” JPMorgan Chase Bank, N.A. v.

Kothary, 178 A.D.3d 791, 794 (2d Dep’t 2019) (internal quotations and citations omitted).’

In addition, despite an unsupported “inability to locate and effectuate service on”

defendants (PI. Br. at 7), Plaintiffs concede that they possess a number of service addresses for the

defendants. See Grunfeld Aff. § 21, see also (NYSCEF No. 30) (listing service addresses). Yet,

Plaintiffs have not made any showing that service was even attempted at any of these foreign

addresses. David v. Total Identity Corp., 50 A.D.3d 1484, 1485 (4th Dep’t 2008) (finding Plaintiff
“failed to establish” impracticability where it “never attempted service” at addresses contained in

the record); Hotel Portfolio II Uk Ltd. 2023 WL 6290940, at *1 (Sup. Ct. N.Y. Cty. Sep. 21, 2023)

(“If the defendant resides at a known address in the foreign country, for example, and nothing is

indicated to show that service there would be impracticable or unduly expensive, an application

for court-ordered service under CPLR 308(5) should be denied”) (quoting Siegel, N.Y. Prac. § 75

° See also Arbeeny v. Kennedy Exec. Search, Inc., 31 Misc. 3d 494, 501-02 (Sup. Ct. N.Y. Cty. 2011) (“If plaintiff
had wished to serve [the foreign] defendant in Great Britain within the 120 days allowed by the CPLR, the Hague
Convention offered a means of doing so.”) (internal citations omitted); CanWest Glob. Commce’ns Corp. v. Mirkaei
Tikshoret, 2005 WL 6082564, at *11 (Sup. Ct. N.Y. Cty. 2005) (alternative service denied because plaintiff “failed to
establish...that service pursuant to the Hague Convention would be impracticable”); Tetro v. Tizov, 184 A.D.2d 633,
635 (2d Dep’t 1992) (“There is no proof that effectuating service by any of the ordinary methods in Belgium would
have been unduly burdensome.”) (citations omitted).

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(6th ed. 2018)); Sintec Media Ltd. v. Televisa, S.A. de C.V., 2019 WL 4804210, at *2 (Sup. Ct.

N.Y. Cty. Oct. 1, 2019) (denying motion for alternative service because plaintiff “has [foreign

corporation’s] purported Mexican address for service” and, thus, plaintiff has “a further chance to

serve [defendant] in Mexico”); Giordano v. McMurtry, 79 A.D.2d 548, 548-49 (1st Dep’t 1980)

(finding “no showing, as required” of impracticability where “none of th[e] alternatives” under the

CPLR “was attempted by plaintiffs”), aff'd, 53 N.Y.2d 962 (1981); Lowenfeld, 2008 WL 2937182,
at *5 (denying motion for alternative service because “Plaintiff has not attempted to serve the

Defendants in Russia” and, thus, is not entitled to “alternative service as a last resort.”).

The cases cited by Plaintiffs are inapposite. A number of the cases do not concern the

Hague Convention at all. See, e.g., Alfred E. Mann Living Tr., 78 A.D.3d at 142 (1st Dep’t 2010)

(permitting service by e-mail because the defendant waived personal service of process in a

guarantor agreement); Franklin v. Winard, 189 A.D2d 717 (1st Dep’t. 1993) (Hague Convention

not applicable); Liebeskind v. Liebskind, 86 A.D.2d 207 (1st Dep’t. 1982) (affirming alternative,

expedited service in a domestic matrimonial action where allegedly abusive wife “fled New York

State” with couple’s eight year old daughter); State Street Bank and Trust Co. v. Coakley, 16

A.D.3d_ 403 (2d Dep’t 2005) (one page opinion rejecting post-judgment attack on alternative

service in a domestic mortgage foreclosure action).

Other cases cited by Plaintiffs allow alternative service only where, unlike here, evidence

demonstrates an actual obstacle to service under the Hague Convention. See, e.g., Goldfarb v.

Channel One Russia, et al., 2018 WL 11225240, at *1-2 (S.D.N.Y. Oct. 19, 2018) (approving

alternative service on Russian defendants where “there is no reason to believe that [Hague

Convention] service would effective” because “courts have recognized that Russia refuses to

transmit service requests through its Central Authority”) (internal quotes and citations omitted);

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Elsevier, Inc. v. Siew Yee Chew, 287 F.Supp.3d_ 374, 376-79 (S.D.N.Y. 2018) (allowing email

service against China-based, on-line counterfeiters where Hague Convention did not clearly apply

because prior discovery showed that defendants 2 multiple and ever-changing physical addresses”

and “storefronts” were “operated in such a way as to stymie any effort to determine their true

addresses”); Convergen Energy LLC v. Brooks, 2020 WL 4038353, at *4 (S.D.N.Y. July 17, 2020)

(permitting alternative service to Hague Convention where Central Authority in Spain stated that

requests may not be processed for the duration of the Covid pandemic); Korea Deposit Ins. Co. v.

Jung, 59 Misc. 3d 442, 447 (Sup. Ct. N.Y. Cty. 2017) (alternate service permitted after Central

Authority of the Republic of Korea failed to process “repeated attempts over an extended period”);

VPN.Com LLC v. Dikian, 2022 WL 17371064, at *3 (C.D. Cal. Sept. 8, 2022) (permitting service

by email to defendant where no Hong Kong address could be located “despite [p]laintiff's efforts,”

including “multiple investigations and background searches” and third party inquiries); Jn re

Petrobras Sec. Litig., 2015 WL 10846515, at *1 (S.D.N.Y. Nov. 2, 2015) (permitting e-mail
service upon Brazilian counsel on unopposed motion after plaintiffs retained Brazilian local

counsel and sent 13 letters rogatory to the Brazilian Ministry of Justice).

Here, Plaintiffs do not come close to demonstrating any such requisite efforts. See Factual

Background, Section A, supra. For the same reasons, Plaintiffs likewise have failed to show that

service on INED defendants Lu, Cheng and Chow, all of whom reside in Hong Kong, is

impracticable. 10

Plaintiffs are required to either comply with the Hague Convention or to show that doing

so is impracticable for an identified reason. Having done neither, Plaintiffs’ Motion for alternative

10 In addition, Plaintiffs still would need to effect service on the additional, non-U.S. defendants Ting (Tina) Zheng,
Albert Chen and Yuen Kam. Plaintiffs’ Motion contains no discussion of any efforts to effect service (or alleged
difficulties in doing so) on an individual defendant basis, and so Plaintiffs make no showing as to why service on these
additional non-U.S. defendants would be “impracticable” either.

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service should be denied.

Il. PLAINTIFFS’ PROPOSED METHODS OF ALTERNATIVE SERVICE ARE
IMPROPER

Plaintiffs seek leave for alternative service through (i) substituted service on counsel at

White & Case, or (ii) use of email addresses that Plaintiffs have taken from a service list in another

action. Pl. Br. at 17, 22. Plaintiffs fail to meet their burden to establish that either method of

alternative service is permitted or warranted under the governing Hague Convention.

A Alternative Service by Email Should Be Denied

Plaintiffs’ proposal to serve Mr. Chen through email is improper because (i) as noted

above, Plaintiffs have failed initially to establish that service is impracticable, and (ii) separately,

China does not allow for email service under the Hague Convention. As noted above, Mr. Chen

has resided in China since 2005. Chen Aff. 4 3. Courts in New York have routinely held that

“service via email on litigants located in China is not permitted by the Hague Convention.” Smart

Study Co., 620 F. Supp. 3d at 1393 (collecting cases). The Hague Convention’s permissible service

methods include service “by diplomatic and consular agents, service through consular channels,

service on judicial officers in the receiving country, and direct service ‘by postal channels’.” Jd.

at 1392 (internal citation omitted). However, China specifically has objected to service “by postal

channels,” and that objection preclude[s] service by email under the Hague Convention.” Jd.; see

also Facebook, Inc. v. 9 Xiu Network (Shenzhen) Tech. Co., 480 F. Supp. 3d 977, 987 (N.D. Cal.

2020) (“Direct service on a defendant in China through the defendant’s e-mail address is not one

of those channels [allowed under the Hague Convention], so Facebook’s motion for an order

authorizing service by e-mail should be denied.”). Accordingly, service through email to Mr. Chen

in China is not allowed under the Hague Convention.

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B Alternative Service through Defendants’ Counsel Should be Denied

Plaintiffs’ proposal to serve Mr. Chen (as well as INED defendants Lu, Cheng and Chow)

through substituted service on White & Case should be denied because: (i) as discussed above,

Plaintiffs have not shown that service cannot be made under the Hague Convention, and (i) White

& Case is not authorized to receive service on behalf
of these defendants. In Yamamoto, the First

Department explained that service of process on a New York attorney for defendant, residing in

Japan, would not be permitted, in the absence of defendant’s authorization of service on attorney,

when there was procedure for service in Japan. 43 A.D.3d at 373 (“In view of the procedures in

place for effectuating service upon defendant in Japan, and the absence of any evidence that service

in that manner is ‘impracticable,’ the court properly denied plaintiff's request, pursuant to CPLR

308(5), for an order directing that service on defendant be effectuated by personal delivery of

process upon his attorneys.”) (citation omitted).

Similarly, in Broman v. Stern, the Second Department held that “[a]n attorney is not

automatically considered the agent of his client for purposes of the service of process. In the

absence of proof that the defendants-respondents designated their attorney as their agent for the

purposes of accepting service of process, we must conclude that the attorney lacked authority to

accept service of their behalf.” 172 A.D.2d 475, 476 (2d Dep’t 1991); see also Amaprop Ltd. v.

Indiabulls Fin. Servs. Ltd., 2012 WL 4801452, at *11 (S.D.N.Y. Oct. 5, 2012) (denying attempted

service on defendant through Skadden Arps law firm because such law firm was not authorized to

accept service and no showing was made that service abroad was impracticable).

In Convergen—a case that Plaintiffs rely on—the plaintiff sought an order under Federal

Rule of Civil Procedure Rule 4(f)(3) to serve Spanish defendants through U.S. counsel that had

stated they were not authorized to accept service. The court there denied the request, holding that

Rule 4(f)(3) does not permit service of an individual located abroad by serving counsel located in

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the United States. 2020 WL 4038353 at *9.

Here, in addition to Plaintiffs failing to assert (much more establish) that service is

impracticable under the Hague Convention, counsel at White & Case informed Plaintiffs that its

clients (Chen, Lu, Chow and Cheng) have not authorized White & Case to accept service on their

behalf, and that White & Case did not have any relationship with the other unserved defendants

(Zheng, Chen and Kam). Pl. Br. at 13; see also (NYSCEF No. 32 at 3). Accordingly, Plaintiffs’

request for alternative service through White & Case is not proper and should be denied.

lil. Plaintiffs’ Request for an Extension of Time for Service is Not Warranted.

Plaintiffs also seek an extension of the 120-day service period under CPLR 306-b to either:

(i) 60 days from any decision authorizing alternative service, or (ii) “the time it takes for Plaintiffs

to complete service under the Hague Convention.” PI. Br. at 20-22. Such an extension may be

granted upon “good cause shown or in the interest of justice.” See CPLR 306-b.'! For the reasons

discussed above, Plaintiffs have not met their burden for obtaining alternative service, and the

related request for an extension fails for the same reasons. Further, Plaintiffs offer no good cause,

and can cite to no supporting case law, that would justify the extraordinary request for an unlimited

extension of whatever time is needed to complete service under the Hague Convention. Mr. Chen

does not object to Plaintiffs’ alternative request that Plaintiffs be allowed “to renew [its] motion

on March 1, 2024, which is six months after Plaintiffs service requests under the Hague

Convention were sent, if the Hague service requests are not completed by that date.” Pl. Br.

at 27, n.2.

1 See also Henneberry v. Borstein, 91 A.D.3d 493, 496 (Ist Dep’t 2012) (“A ‘good cause’ extension requires a
showing of reasonable diligence in attempting to effect service upon a defendant.”); Bumpus v. New York City Transit
Auth., 66 A.D.3d 26, 32 (2d Dep’t 2009) (same).

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CONCLUSION

For the foregoing reasons, and upon the accompanying Affirmation of Mark Chen and

Affidavit of Jennifer Weng, Defendant Mark Chen respectfully requests that this Court deny

Plaintiffs’ motion for an order allowing alternative service of process pursuant to CPLR 308(5).

Dated: November 6, 2023
New York, New York

WHITE & CASE LLP

/s/ David Hille

David Hille
Robert Tiedemann
1221 Avenue of the Americas

Case Info

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Andrea Masley Track Judge’s New Case

Case No.

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Document Filed Date

November 06, 2023

Case Filing Date

January 05, 2022

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Parties

Albert Chen Defendant
BAIK, ROBIN JAEHYUNG Attorney for the Defendant
BERMAN, MARK ARTHUR Attorney for the Defendant
BILES, MICHAEL JOHN Attorney for the Defendant
BIRNBAUM, MICHAEL DAVID Attorney for the Defendant
BLAKELY, TIMOTHY WILLIAM Attorney for the Defendant
BUSHELL, VICTOR CHARLES Attorney for the Defendant
CELLENKOS INC. Defendant
CORDOVI, BRANDON MATTHEW Attorney for the Plaintiff
CROSS, RYAN BURNS Attorney for the Defendant
DE LA TORRE, MATEO JOSEPH Attorney for the Defendant
EASTON CAPITAL CORP. Defendant
GM PRECISION MEDICINE (BVI) LIMITED Defendant
GOLDEN MEDITECH (BVI) COMPANY LIMITED Defendant
GRUNFELD, MICHAEL Attorney for the Plaintiff
HILLE, DAVID GRANT Attorney for the Defendant
Jack Chow Defendant
Jacky Cheng Defendant
Jennifer J. Weng Defendant
Ken Lu Defendant
LIEBERMAN, JEREMY ALAN Attorney for the Plaintiff
MANDEL, JAY YAIR Attorney for the Defendant
Mark Da-jian Chen Defendant
MILLER, JACOB Attorney for the Defendant
MW Gestion, derivatively on behalf of nominal defendant Global Cord Blood Corporation Plaintiff
MW Optimum, derivatively on behalf of nominal defendant Global Cord Blood Corporation Plaintiff
PILLAI, ALVINA VADIVEL Attorney for the Defendant
REDWOOD VALUATION PARTNERS Defendant
SAVAL, DANIEL JOSEPH Attorney for the Defendant
TIEDEMANN, ROBERT EDWARD Attorney for the Defendant
Ting tina Zheng Defendant
WALTER, NICHOLAS CHARLES EDMUND Attorney for the Defendant
WILSON, DAWN MARIE Attorney for the Defendant
Yuen Kam Defendant
CHRISTOPHER COGBURN Attorneys for Defendants
ADAM BERMAN Attorneys for Defendants
RYAN BERRY Attorneys for Defendants

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