Better Mouse Company, LLC v. The Partnerships and Unincorporated Associations Identified on Schedule "A"

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
BETTER MOUSE COMPANY, LLC
v.
THE PARTNERSHIPS AND
UNINCORPORATED
ASSOCIATIONS IDENTIFIED ON
SCHEDULE “A”
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CIVIL NO. 4:25-CV-1324-SDJ
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Better Mouse Company, LLC’s Ex Parte Motion
for Alternative Service and Expedited Discovery. (Dkt. #2). Therein, Plaintiff seeks
authorization for alternative service of process for the foreign defendants, and for
expedited discovery against a third party—specifically, Amazon.com, Inc. (Dkt. #2
at 10). After full consideration, the Court concludes that the motion should be
GRANTED in part and DENIED in part.
I. B ACKGROUND
Plaintiff Better Mouse Company, LLC (“Better Mouse”) is a Texas limited
liability company and owner by assignment of U.S. Patent No. 7,532,200, for an
“apparatus for setting multi-stage displacement resolution of a mouse.” (Dkt. #1 ¶ 5);
(Dkt. #1-3). The ’200 Patent was issued on May 12, 2009. (Dkt. #1-3 at 1).
According to Better Mouse, the five Defendants identified in the Schedule A,
(Dkt. #1-1), are foreign business entities operating out of the People’s Republic of
China. (Dkt. #1 ¶ 6). Each manages an Amazon.com storefront, if not multiple
storefronts, and sells products that allegedly infringe on Better Mouse’s ’200 Patent.
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(Dkt. #1 ¶ 1). These Defendants are purportedly “under the common control of one
entity or individual,” and “work[ ] in active concert to willfully offer for sale, sell,
and/or import into the United States” the disputed products. (Dkt. #1 ¶¶ 6–7).
Better Mouse filed this action to enforce its rights under the ’200 Patent. And
because of the anonymous nature of Defendants, Better Mouse now seeks third-party
expedited discovery on Amazon.com, Inc., so that Better Mouse can “uncover the true
identity of the party behind Defendants’ Amazon storefronts or their respective email
addresses.” (Dkt. #2 at 1). With Defendants’ email addresses, Better Mouse then also
seeks authorization to alternatively serve Defendants via email. (Dkt. #2 at 1).
II. LEGAL STANDARDS
A. Expedited Discovery
Federal Rule of Civil Procedure 26(d)(1) provides that “[a] party may not seek
discovery from any source before the parties have conferred as required by Rule 26(f),
except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or
when authorized by these rules, by stipulation, or by court order.” Although the
Federal Rules do not provide an exact standard for granting such authorization,
federal courts within the Fifth Circuit, including the Eastern District of Texas and
this Court, have used a “good cause” standard to determine whether a party is
entitled to early discovery. See Strike 3 Holdings, LLC v. Doe, No. 4:22-CV-459,
2025 WL 1483448, at *1 (E.D. Tex. May 22, 2025) (collecting cases). In making a good
cause determination, “a court must examine the discovery request on the entirety of
the record to date and the reasonableness of the request in light of all the surrounding
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circumstances.” Huawei Techs. Co., Ltd. v. Yiren Huang, No. 4:17-CV-893, 2018 WL
10127086, at *1 (E.D. Tex. Feb. 13, 2018) (citation modified).
For the good-cause analysis, courts weigh five factors: (1) whether the plaintiff
has made a prima facie case of actionable harm; (2) the specificity of the discovery
request; (3) the absence of alternative means to obtain the subpoenaed information;
(4) whether there is a central need for the subpoenaed information to advance the
claim; and (5) the user’s expectation of privacy. Strike 3 Holdings, LLC, 2025 WL
1483448, at *2 (citation omitted). “The burden of showing good cause is on the party
seeking the expedited discovery.” St. Louis Grp., Inc. v. Metals & Additives Corp.,
275 F.R.D. 236, 240 (S.D. Tex. 2011). Moreover, requests for expedited discovery
should be limited in scope, id., and courts, when determining whether to authorize
early discovery, enjoy “broad discretion to tailor discovery narrowly and to dictate the
sequence of discovery.” Arista Records LLC v. Does 1–19, 551 F.Supp.2d 1, 6 (D.D.C.
2008) (quoting Crawford-El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d
759 (1998)).
B. Alternative Service
Federal Rule of Civil Procedure 4(f) provides three methods for effectuating
service of process on a foreign individual or entity. First, “by any internationally
agreed means of service that is reasonably calculated to give notice, such as those
authorized 	by 	the 	Hague 	Convention 	on 	the 	Service 	Abroad 	of 	Judicial 	and
Extrajudicial 	Documents.” 	FED . 	R. 	CIV. 	P. 	4(f)(1). 	Second, 	“if 	there 	is 	no
internationally agreed means, or if an international agreement allows but does not
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specify other means, by a method that is reasonably calculated to give notice.” Id.
at (f)(2). And third, “by other means not prohibited by international agreement, as
the court orders.” Id. at (f)(3).
For Rule 4(f)(3), “[s]ervice on a foreign defendant is . . . proper when it is a court
ordered method that is not prohibited by international agreement and is reasonably
calculated, under the circumstances, to notify the defendant of the case and afford
them an opportunity to present objections.” Viahart, L.L.C. v. GangPeng, No. 21-
40166, 2022 WL 445161, at *3 (5th Cir. Feb. 14, 2022) (citing Nagravision SA v.
Gotech Int’l Tech. Ltd., 882 F.3d 494, 498 (5th Cir. 2018); Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Notably, the
Hague Convention and Rule 4(f)(1) do not displace service under Rule 4(f)(3). Viahart,
L.L.C., 2022 WL 445161, at *3; Nagravision SA, 882 F.3d at 498.
III. D ISCUSSION
Better Mouse’s request for alternative service of process by email is premised
on the Court granting Better Mouse’s request for third-party expedited discovery of
Defendants’ email addresses from Amazon.com. See (Dkt. #2 at 1, 4). The Court thus
begins by addressing Better Mouse’s expedited discovery request.
A. Expedited Discovery
Better Mouse seeks two categories of evidence in its expedited discovery
request: (i) “the identities and locations of Defendant[s],” including “all known contact
information” 	and 	associated 	email 	addresses 	(the 	“contact 	information”); 	and
(ii) financial information and information on each Defendant’s “operations and . . .
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associated sales,” including “a full accounting of [each] Defendant’s sales and listing
history related to their respective Online Marketplaces” (the “financial and sales
information”). (Dkt. #2-1 at 5). Each is addressed in turn.
i. 	Contact information.
The Court finds that four of the five good-cause factors weigh in favor of
authorizing expedited discovery for Defendants’ contact information. See (Dkt. #2
at 3–4). First, the sought after discovery is narrowly tailored to obtain information
that will allow Better Mouse to locate and serve the Defendants. See St. Louis Grp.,
Inc., 275 F.R.D. at 240. Second, without Defendants’ contact information, Better
Mouse asserts that it will be unable to effectuate service—hence, there is a central
need for this information to advance the case. See Arista Records LLC, 551 F.Supp.2d
at 6–7 (finding good cause for expedited discovery because “defendants must be
identified before this suit can progress further” (citation modified)). Third, Better
Mouse does not have an alternative means to obtain the anonymous Defendants’
storefront information, except from Amazon.com. And finally, as for Defendants’
expectations of privacy, the Court finds that Defendants’ expectations are minimal,
given that they have already shared the sought after contact information with
Amazon.com. See Guest v. Leis, 255 F.3d 325, 335–36 (6th Cir. 2001) (“Individuals
generally lose a reasonable expectation of privacy in their information once they
reveal it to third parties.”).
Therefore, although Better Mouse has not established a prima facie case
against Defendants for the first factor of the good-cause analysis, see Strike 3
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Holdings, LLC, 2025 WL 1483448, at *2, the Court concludes that Better Mouse has,
given the circumstances, shown good cause for its expedited discovery request for
Defendants’ contact information.
ii. Financial and sales information.
The Court finds that none of the good-cause factors weighs in favor of
authorizing expedited discovery for Defendants’ financial and sales information.
Better Mouse provides almost no rationale for why it should be permitted to seek this
specific information from Amazon.com. See (Dkt. #2 at 3–4). The only discernable
reason provided is that Better Mouse believes expedited discovery of the financial and
sales information is necessary because “Defendants are likely to not participate in
this proceeding,” (Dkt. #2 at 3). This is a speculative statement that does not establish
good cause for early discovery. See, e.g., Roche Diagnostics Corp. v. Binson’s Hosp.
Supplies, Inc., No. 1:17-CV-949, 2017 WL 11573559, at *2 (S.D. Ind. May 11, 2017)
(denying plaintiff’s motion for expedited discovery because it provided no reason
“aside from some speculation” for permitting expedited discovery). Therefore, the
Court concludes that Better Mouse has not shown good cause for its expedited
discovery request for Defendants’ financial and sales information.
B. Alternative Service
The Court, having determined that Better Mouse may seek expedited discovery
for Defendants’ contact information, 	next turns to Better Mouse’s request for
alternative service of process by email, pursuant to Rule 4(f)(3).
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As a preliminary matter, alternative service under Rule 4(f)(3) is permissible
only when such requested service is not prohibited by international agreement. The
Supreme Court has held that the Hague Convention is mandatory when applicable
at the place of service—i.e., “in all cases, in civil or commercial matters, where there
is occasion to transmit a judicial or extrajudicial document for service abroad.”
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S.Ct. 2104,
100 L.Ed.2d 722 (1988) (quoting 20 U.S.T. 361, T.I.A.S. 6638, Art. 1). However, the
Hague Convention does not apply where the address of the foreign party to be served
is unknown. 20 U.S.T. 361, T.I.A.S. 6638, Art. 1; RPost Holdings, Inc. v. Kagan,
No. 2:11-CV-238, 2012 WL 194388, at *1 (E.D. Tex. Jan. 23, 2012).
Here, Better Mouse requests alternative service pursuant to Rule 4(f)(3) and
asserts that it has been “unable to determine the exact physical whereabouts or
identities of [the] Defendants.” (Dkt. #2 at 9). Better Mouse does not, however,
provide support for its conclusory assertion. Moreover, the cases relied upon by Better
Mouse to justify its request do not support authorization of alternative service by
email without Better Mouse first showing why alternative service is necessary. See
Naughtys LLC v. Does 1–580, No. 4:21-CV-492, 2022 WL 816924, at *6 (N.D. Tex.
Mar. 9, 2022) (permitting alternative service where “Plaintiff has shown that such
efforts [to effect service via the Hague Convention] will most likely be unsuccessful
and/or result in delays of twelve to twenty-four months”), report and recommendation
adopted, 2022 WL 816480 (N.D. Tex. Mar. 17, 2022); Sinox Co. v. YiFeng Mfg. Co.,
No. 6:21-CV-1022, 2022 WL 1017916, at *2 (W.D. Tex. Apr. 5, 2022) (permitting
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alternative 	service 	because 	plaintiff 	had 	shown 	that 	it 	attempted 	service,
unsuccessfully, through other, more traditional means first); Viahart, LLC v. Does
1–54, No. 6:18-CV-604 (E.D. Tex. June 17, 2020), (Dkt. #29 at 7) (“The record before
the Court shows that Plaintiff made diligent efforts to obtain physical addresses for
Defendants, but that attempted delivery of the complaint was unsuccessful because
Defendants’ addresses are unknown.”).
A blanket assertion—without proof—that Better Mouse is unable to locate and
serve the foreign defendants will not suffice to warrant authorizing alternative
service of process under Rule 4(f)(3). Therefore, because Better Mouse has not shown
that alternative service is necessary, the Court will deny Better Mouse’s request for
alternative service of process by email at this time. See Buffer v. Grupo Radio Centro,
S.A.B. de C.V., EP-10-CV-364, 2011 WL 13238336, at *2 (W.D. Tex. Mar. 3, 2011)
(“[A] district court may require the parties to show that they have reasonably
attempted to effectuate service on the defendant(s) and that the circumstances are
such that the district court’s intervention is necessary.” (quoting Madu, Edozie &
Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 115 (S.D.N.Y. 2010))); see
also Compass Bank v. Katz, 287 F.R.D. 392, 395 n.4 (S.D. Tex. 2012) (explaining that
a plaintiff should not seek alternative service under Rule 4(f)(3) merely to “expedite
the process and avoid additional costs of service” (citation omitted)).
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IV. C ONCLUSION
For the foregoing reasons, it is ORDERED that Plaintiff Better Mouse
Company, LLC’s Ex Parte Motion for Alternative Service and Expedited Discovery,
(Dkt. #2), is GRANTED in part and DENIED in part.
It is further ORDERED that Plaintiff may immediately commence discovery
by providing actual notice, pursuant to subpoena or otherwise, of this Order to any of
the following parties:
1. 	Defendants, 	their 	affiliates, 	officers, 	agents, 	servants, 	employees,
attorneys, confederates, and any person acting in active concert or
participation with them; and
2. 	Amazon.com, Inc.
The parties shall, within seven (7) business days after receipt of such notice, provide
to Plaintiff expedited discovery, including copies of documents and records in such
person’s or entity’s possession or control relating to the identities and locations of
Defendants, 	their 	affiliates, 	officers, 	agents, 	servants, 	employees, 	attorneys,
confederates, and any person acting in active concert or participation with them,
including all known contact information and all associates email addresses.
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