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In re GLG Life Tech Corp. Sec. Litig.

United States District Court for the Southern District of New York

November 9, 2012, Decided

11 Civ. 09150 (KBF) (GWG)

Opinion

 [*263]  OPINION AND ORDER

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiffs in this matter have filed a complaint alleging that the defendants — GLG Life Tech Corporation ("GLG"), Luke Zhang, and Brian R. Meadows — violated federal securities laws. The plaintiffs successfully served GLG and Meadows, both of whom have appeared by counsel and responded to the complaint. The plaintiffs now move for leave to serve Zhang by alternative means pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure. For the reasons stated below, this motion is granted.

I. BACKGROUND

Defendant Zhang is the Chairman and Chief Executive Officer of GLG and is a citizen of Canada.1 Defendant Meadows is the Chief Financial Officer of GLG.2 GLG was served on February 17, 2012, through its registered agent in the United States.3 Meadows was served at GLG's headquarters in Vancouver,  [**2] Canada, on March 2, 2012, pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, Convention done at the Hague November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 ("the Hague Convention").4

 [*264]  On the same day, the process server also attempted to serve Zhang at GLG's headquarters in Vancouver but was told "that Luke Zhang works permanently in China and has for years." See Certificate, dated Mar. 2, 2012 (annexed as Ex. B to Gonnello 1st Decl.). Plaintiffs' counsel then inquired with the process server about serving Zhang in China. See Gonnello 2d Decl. ¶ 2. The process server stated that Zhang should be served at a residential address, and informed counsel that finding Zhang's home address in China would cost at least $5,000, "with no guarantee of success." Id. ¶ 6. Counsel chose to conduct a search by other means, hoping to "minimize costs to the class." Id. ¶ 8. This search included "(1) Google searches; (2) Bloomberg law searches; (3) Accurint.com searches; and (4) any other methods [members of his firm] could think of." Id. Counsel also searched the Securities and Exchange Commission's EDGAR System, as well as the Canadian Securities  [**4] Administrator's SEDAR system. Id.

On March 6, 2012, attorneys from the law firm of DLA Piper filed notices of appearance on behalf of GLG. On March 9, 2012, plaintiffs' counsel contacted GLG's attorneys by phone to seek a waiver of service of process from Zhang, and sent them a waiver of service document. See Notice of Lawsuit and Request to Waive Service of Summons, dated Mar. 9, 2012 (annexed as Ex. C to Gonnello 1st Decl.), at 2. A signed waiver form was never returned, however. See Letter from Richard W. Gonnello to Andrew Escobar, dated Apr. 6, 2012 (annexed as Ex. D to Gonnello 1st Decl.), at 2. On April 6, 2012, having had no success in his search for Zhang's residential address, plaintiffs' counsel requested Zhang's residential address from GLG's attorneys. See Gonnello 2d Decl. ¶ 9; Letter from Richard W. Gonnello to Andrew Escobar, dated Apr. 6, 2012 (annexed as Ex. D to Gonnello 1st Decl.). He received no response. See Gonnello 2d Decl. ¶ 9. On June 25, 2012, GLG and Meadows filed a motion to dismiss. See Defendant GLG Life Tech Corporation and Brian Meadows' Notice of Motion to Dismiss, filed June 25, 2012 (Docket # 31).

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287 F.R.D. 262 *; 2012 U.S. Dist. LEXIS 161171 **; 83 Fed. R. Serv. 3d (Callaghan) 1331; 2012 WL 5472399

In re: GLG LIFE TECH CORPORATION SECURITIES LITIGATION

Subsequent History: Later proceeding at In re GLG Life Tech Corp. Secs. Litig., 2013 U.S. Dist. LEXIS 29541 (S.D.N.Y., Feb. 28, 2013)

Dismissed by In re GLG Life Tech Corp. Sec. Litig., 2014 U.S. Dist. LEXIS 14975 (S.D.N.Y., Jan. 31, 2014)

CORE TERMS

alternative means, Plaintiffs', serving process, courts, motion for leave, notice, annexed, Documents, parties, Abroad, international agreement, method of service