Case 4:18-cv-00469-ALM Document 209 Filed 07/07/20 Page 1 of 5 PageID #: 6216
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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`§
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`§
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`§
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`WAPP TECH LIMITED PARTNERSHIP
`and WAPP TECH CORP.
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`v.
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`SEATTLE SPINCO INC., ENTIT
`SOFTWARE LLC, ENTCO
`INTERACTIVE (ISRAEL) LTD, ENTCO
`GOVERNMENT SOFTWARE LLC, and
`MICRO FOCUS (US) INC.
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`Civil Action No. 4:18-CV-00469
`Judge Mazzant
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`MEMORANDUM OPINION AND ORDER
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`Pending before the Court is Defendant EntCo Interactive (Israel) Ltd’s (“EntCo Israel”)
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`Motion to Dismiss (Dkt. #115) and Renewed Motion to Dismiss (Dkt. #133); and Plaintiffs Wapp
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`Tech Limited Partnership and Wapp Tech Corp.’s (collectively, “Wapp”) Contingent Motion to
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`Add EntCo Interactive (Israel) Ltd as a Party (Dkt. #120). After reviewing the relevant pleadings
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`and motions, the Court finds that EntCo Israel’s motions should be denied and that Wapp’s motion
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`should be denied as moot.
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`BACKGROUND
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`On August 20, 2019, Wapp filed its Second Amended Complaint (the “Complaint”)
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`asserting claims for patent infringement (Dkt. #76). Wapp’s Complaint enumerated claims against
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`five parties: (1) Seattle SpinCo Inc.; (2) EntIT Software LLC; (3) EntCo Israel; (4) Entco
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`Government Software LLC; and (5) Micro Focus (US) Inc. (Dkt. #76). While Wapp quickly
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`served four of these parties, Wapp did not serve EntCo Israel until December 1, 2019—103 days
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`after the Complaint’s filing (Dkt. #127).
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`Case 4:18-cv-00469-ALM Document 209 Filed 07/07/20 Page 2 of 5 PageID #: 6217
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`On November 20, 2019, EntCo Israel filed its motion to dismiss pursuant to Federal Rule
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`of Civil Procedure 12(b)(5) (Dkt. #115). Wapp filed a response to the motion on December 2,
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`2019 (Dkt. #118). On December 10, 2019, EntCo Israel filed its reply (Dkt. #123).
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`On December 3, 2019, Wapp filed its contingent motion to add EntCo Israel as a party if
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`the Court were to grant EntCo Israel’s motion to dismiss (Dkt. #120). On December 10, 2019,
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`EntCo Israel filed its response (Dkt. #124).
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`Before the Court issued an order, EntCo Israel filed its renewed motion to dismiss on
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`December 19, 2019 (Dkt. #133). On December 30, 2019, Wapp filed its response to the renewed
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`motion (Dkt. #135). And, on January 6, 2020, EntCo Israel filed its reply (Dkt. #136).
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 12(b)(5) provides that a party may file a motion to dismiss
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`for insufficient service of process. A district court has “broad discretion to dismiss an action for
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`ineffective service of process.” Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645
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`(5th Cir. 1994).
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`Rule 4(h)(2) governs service on a foreign corporation. FED. R. CIV. P. 4(h)(2). It states
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`that a foreign corporation must be served in a manner prescribed by Rule 4(f). FED. R. CIV. P.
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`4(h)(2). Under Rule 4(f), service may be “by any internationally agreed means of service that is
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`reasonably calculated to give notice, such as those authorized by the Hague Convention on the
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`Service Abroad of Judicial and Extrajudicial Documents.” FED. R. CIV. P. 4(f).
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`ANALYSIS
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`EntCo Israel seeks dismissal under Rule 12(b)(5) based on improper service by Wapp
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`(Dkt. #115; Dkt. #133). EntCo Israel asserts that, per the Court’s Order Governing Proceedings
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`(Dkt. #82 at p. 5), Wapp was required to serve every defendant within 90 days after filing its
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`Complaint or otherwise needed to show good cause as to why service was not made prior to the
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`expiration of the 90-day period (Dkt. #115 at p. 4). EntCo Israel contends that because Wapp did
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`not satisfy either of these requirements, the Court must dismiss EntCo Israel from the case
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`(Dkt. #115 at p. 4).
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`Wapp counters that the time period to serve EntCo Israel is longer given that EntCo Israel
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`is a foreign entity (Dkt. #118 at pp. 4–5). Even so, Wapp asserts that it has shown good cause
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`under Rule 4(m) for the delayed service because the United States Post Service lost the service
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`package that it sent to EntCo Israel during the 90-day period (Dkt. #118 at p. 4). Because good
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`cause exists, according to Wapp, the Court should extend time for service (Dkt. #118). The Court
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`agrees with Wapp in that the deadline for service extends beyond the 90-day limit under Rule 4(m)
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`due to EntCo Israel’s status as a foreign entity; therefore, the Court finds that Wapp’s service is
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`sufficient and EntCo Israel’s 12(b)(5) motion to dismiss must be denied.
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`The Court looks to both the Order Governing Proceedings and Rule 4 to determine the
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`timeliness of Wapp’s service on EntCo Israel. See Aguirre v. ISC Constructors, LLC, 70 F. Supp.
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`3d 766, 774 (E.D. Tex. 2014) (applying both the court’s order governing proceedings and Rule
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`4(m)); see also FED. R. CIV. P. 83(a)(1) (stating that a local rule must be consistent with federal
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`statutes); Levitt-Stein v. Citigroup, Inc., 284 F. App’x 114, 117 (5th Cir. 2008) (holding that, under
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`Rule 83(a)(1), local rules cannot be inconsistent with the Federal Rules of Civil Procedure). To
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`start, the Court’s Order Governing Proceedings provides that:
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`Any defendant who has not been served with the summons and complaint within
`90 days after the filing of the complaint shall be dismissed, without further
`notice, unless prior to such time the party on whose behalf such service is required
`shows good cause why service has not been made. (See Fed. R. Civ. P. 4(m)).
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`(Dkt. #82 at p. 5) (emphasis in original).
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`Here, Wapp filed its complaint on August 20, 2019 (Dkt. #76). Under the Order Governing
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`Proceedings, Wapp was required to serve EntCo Israel or to show good cause for an extension of
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`service—within 90 days of the Complaint’s filing—by November 18, 2019. See Aguirre, 70 F.
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`Supp. 3d at 777 (emphasis in original) (stating that “if the plaintiff required an extension, good
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`cause was required to be shown by the plaintiff[] prior to the expiration” of the time for service).
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`Wapp did neither. See (Dkt. #127).
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`Despite Wapp’s failure to adhere to the Order Governing Proceedings, the Court must still
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`consider whether service was sufficient under Rule 4. See id. (considering both the order
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`governing proceedings and Rule 4(m)); FED. R. CIV. P. 83(a)(1); Levitt-Stein, 284 F. App’x at 117.
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`In many cases, Rule 4(m) provides parties with a 90-day deadline by which to effectuate service.
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`See FED. R. CIV. P. 4(m). But, where, as here, the defendant is a foreign corporation, the time limit
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`prescribed by Rule 4(m) does not apply. FED. R. CIV. P. 4(m); see also FED. R. CIV. P. 4 advisory
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`committee’s note to 1993 amendment (stating that “[t]he Hague Convention does not specify a
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`time” within which service must be effectuated).
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`While the 90-day time limit does not apply to service on EntCo Israel, “this does not mean
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`that the time to serve process in a foreign country is unlimited.” Walker v. Transfrontera CV de
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`SA, 634 F. App’x 422, 430 (5th Cir. 2015) (per curiam) (citing Lozano v. Bosdet, 693 F.3d 485,
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`488–89 (5th Cir. 2012)). If service is prolonged, the Court may still dismiss a case without
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`prejudice “when the [C]ourt determines in its discretion that the plaintiff has not demonstrated
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`reasonable diligence in attempting service.” Id. (internal quotation marks omitted) (quoting
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`Lozano, 693 F.3d at 489).
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`Here, Wapp “initiated” service on EntCo Israel on September 9, 2019—only 20 days after
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`filing its Complaint (Dkt. #118, Exhibit 1). While Wapp’s first attempt failed through no fault of
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`Case 4:18-cv-00469-ALM Document 209 Filed 07/07/20 Page 5 of 5 PageID #: 6220
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`its own, Wapp’s second attempt to serve EntCo Israel was successful—effectuating service just
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`103 days after Wapp filed the Complaint. The Court therefore finds that Wapp has demonstrated
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`reasonable diligence in attempting service.1 Because Wapp’s service of process is not subject to
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`the 90-day limit of Rule 4(m) and because Wapp otherwise acted reasonably diligent in serving
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`EntCo Israel, the Court finds that EntCo Israel’s motion to dismiss must be denied. Hegwood v.
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`Ross Stores, Inc., No. 304CV2674BHGECF, 2006 WL 8437337, at *4 (N.D. Tex. June 30, 2006);
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`Flock v. Scripto-Tokai Corp. No. Civ.A.H-00-3794, 2001 WL 34111630, at *6 (S.D. Tex. July 23,
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`2001).
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`CONCLUSION
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`It is therefore ORDERED that Defendant EntCo Interactive (Israel) Ltd’s Motion to
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`Dismiss (Dkt. #115) and Renewed Motion to Dismiss (Dkt. #133) are hereby DENIED.
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`It is further ORDERED that Plaintiffs Wapp Tech Limited Partnership and Wapp Tech
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`Corp.’s Contingent Motion to Add EntCo Interactive (Israel) Ltd as a Party (Dkt. #120) is hereby
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`DENIED as moot.
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`1 C.f. id. (finding that the plaintiff did not act with reasonable diligence when he had not effectuated service within
`231 days of filing the complaint); Traxcell Techs., LLC v. Nokia Sols. & Networks US LLC, No. 2:18-CV-412-RWS-
`RSP, 2019 WL 8137134, at *4 (E.D. Tex. Oct. 22, 2019) (finding that the plaintiff had not demonstrated reasonable
`diligence when it attempted service at least 6 times, none of which complied with the Hague Convention); Veliz v.
`Rimax Contractors, Inc., No. 15-6339, 2016 WL 1704496, at *3 (E.D. La. Apr. 28, 2016) (finding that the plaintiff
`did not act with reasonable diligence when he did not attempt proper service under Rule 4(f) within 5 months of filing
`his complaint).
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