Hudson Furniture, Inc., Barlas Baylar v. Alan Mizrahi, Dba Alan Mizrahi Lighting, Lighting Design Wholesalers Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HUDSON FURNITURE, INC., BARLAS BAYLAR,
Plaintiffs-Appellees
v.
ALAN MIZRAHI, DBA ALAN MIZRAHI LIGHTING,
LIGHTING DESIGN WHOLESALERS INC.,
Defendants-Appellants
______________________
2022-1290
______________________
Appeal from the United States District Court for the
Southern District of New York in No. 1:20-cv-04891-PAC-
RWL, Senior Judge Paul A. Crotty.
______________________
Decided: November 16, 2022
______________________
P ATRICK HINES , Hodgson Russ LLP, Buffalo, NY, for
plaintiffs-appellees. Also represented by N EIL BRYAN
F RIEDMAN, New York, NY.
ROBERT L. G REENER, Law Office of Robert L. Greener,
New York, NY, for defendants-appellants.
______________________
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HUDSON FURNITURE, INC. v. MIZRAHI 2
Before M OORE, Chief Judge, P ROST and T ARANTO, Circuit
Judges.
MOORE, Chief Judge.
Alan Mizrahi, dba Alan Mizrahi Lighting and Lighting
Design Wholesalers, Inc., appeals a Southern District of
New York decision denying Mizrahi’s motion for reconsid-
eration of a decision granting Hudson Furniture, Inc. and
Barlas Baylar’s (collectively, Hudson) motion for alterna-
tive service, denying Mizrahi’s motion to dismiss for lack of
personal jurisdiction, and granting Hudson’s motion for a
preliminary injunction. For the following reasons, we af-
firm.
BACKGROUND
Barlas Baylar is the CEO and Creative Director of
Hudson Furniture, which is a manufacturer, designer, and
retailer of high-end lighting designs and furniture. J.A.
170–71. Hudson owns multiple design patents and trade-
marks relating to its lighting designs and promotes its
products with copyrighted pictures of its designs. J.A. 2–
3. Mizrahi, who was last known to reside in Austria, is a
web-based lighting and furniture designer and wholesaler
who advertises and sells his products on several websites.
J.A. 350–51; 494–95.
Mizrahi does not dispute that his websites contain nu-
merous infringing photos of Hudson’s products and list
lighting products that use Hudson’s trademarks. Appel-
lant’s Opening Br. at 29. He alleges, however, that his use
of the photos and trademarks is lawful because he gives
credit to Hudson by noting on his website that certain prod-
ucts were designed by Hudson. J.A. 350–51. And if a cus-
tomer purchases a Hudson product from one of his
websites, Mizrahi then purchases the piece directly from
Hudson as a wholesaler. J.A. 351.
After discovering Mizrahi’s websites and that Mizrahi
sold an unauthorized replica of one of its lighting fixtures
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HUDSON FURNITURE, INC. v. MIZRAHI 3
to a third party, Hudson sued Mizrahi for, inter alia, copy-
right, trademark, and patent infringement. J.A. 42–43.
Immediately thereafter, Hudson filed a motion for a pre-
liminary injunction to enjoin Mizrahi’s use of its copy-
righted photographs and prevent him from selling the
infringing fixtures.
Because Hudson did not know Mizrahi’s whereabouts,
Hudson determined alternative service was the best means
to serve its complaint. Prior to seeking leave for alterna-
tive service, Hudson contacted Robert Greener, Mizrahi’s
United States counsel, to determine if he would accept ser-
vice on Mizrahi’s behalf. J.A. 305. After speaking with
Mizrahi, Greener informed Hudson he was not authorized
to accept service on Mizrahi’s behalf. J.A. 304–05. Hudson
then filed an ex parte motion for leave to serve Mizrahi, be-
lieved to reside in Austria, by alternative service under
Federal Rule of Civil Procedure (FRCP) 4(f)(3). Specifi-
cally, Hudson requested to serve Mizrahi via RPost email
to a list of email addresses known to be used by Mizrahi
and by mail to Greener. Hudson notified Greener of the
motion, J.A. 463–64; 516–17, and Greener did not oppose.
The court granted leave to serve process by alternative
means, and Hudson served the papers on Greener by mail
and used RPost to send the papers to 14 email addresses
associated with Mizrahi.
Mizrahi sought reconsideration of the order granting
alternative service and sought to dismiss the claims for
lack of personal jurisdiction under FRCP 12(b)(2) for im-
proper service. Mizrahi also opposed the motion for a pre-
liminary injunction. The district court did not reconsider
the motion for alternative service, denied the motion to dis-
miss, and granted the motion for a preliminary injunction
as to Hudson’s trademarks and copyrights. J.A. 1–19. Miz-
rahi appealed to the Second Circuit. The Second Circuit
transferred the case to us as it involves an underlying pa-
tent dispute. We have jurisdiction under 28 U.S.C.
§ 1292(c)(1).
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HUDSON FURNITURE, INC. v. MIZRAHI 4
D ISCUSSION
Mizrahi first argues the district court erred in not re-
considering the motion for alternative service because it
presented new information and case law not considered in
the district court’s original decision. Next, Mizrahi argues
the court erred in not dismissing the claims for lack of per-
sonal jurisdiction because alternative service was im-
proper. Finally, Mizrahi argues the district court should
not have granted a preliminary injunction because Hudson
did not establish it would suffer irreparable harm. We do
not agree.
I
For non-patent issues, we apply the law of the regional
circuit. Fujifilm Corp. v. Benun, 605 F.3d 1366, 1370 (Fed.
Cir. 2010). Here, Second Circuit law applies. The Second
Circuit reviews a district court’s decision on a motion for
reconsideration de novo. Kolel Beth Yechiel Mechil of
Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 103
(2d Cir. 2013). The standard for granting a motion for re-
consideration is high, “and reconsideration will generally
be denied unless the moving party can point to controlling
decisions or data that the court overlooked—matters, in
other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995).
Mizrahi argues the district court should have granted
reconsideration because Mizrahi presented new infor-
mation and cited substantial case law from other jurisdic-
tions regarding alternative service in Austria. However,
nothing submitted by Mizrahi could reasonably be ex-
pected to change the court’s conclusion. The information
submitted by Mizrahi was not in any sense new. Mizrahi
merely filed an affidavit challenging the implications of the
evidence submitted by Hudson. J.A. 418–20; 344–50. Fur-
ther, Mizrahi did not cite any controlling decisions the
court overlooked. Mizrahi’s arguments should have been
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HUDSON FURNITURE, INC. v. MIZRAHI 5
filed in an opposition to the motion, which Mizrahi opted
not to file. Thus, Mizrahi failed to meet the high standard
necessary for reconsideration. The court did not err in de-
clining to reconsider the motion.
II
The Second Circuit reviews a district court’s decision
on dismissal for lack of personal jurisdiction de novo. Licci
ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50,
59 (2d Cir. 2012). However, we are not aware of any deci-
sion in which the Second Circuit has determined the stand-
ard of review applicable to the district court’s grant of
alternative service under FRCP 4(f). We therefore proceed
based on how the Second Circuit would likely review this
issue. The Second Circuit has aligned itself with other cir-
cuits by adopting an abuse of discretion standard when re-
viewing other issues arising under FRCP 4. See Thompson
v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002) (“Although
we have not previously determined the standard of review
applicable to [FRCP] 4(m) dismissals for failure to serve
process, we join our sister circuits in reviewing such dis-
missals for abuse of discretion.”). Other circuits have sim-
ilarly adopted an abuse of discretion standard when
reviewing district court decisions on alternative service un-
der FRCP 4(f)(3). See Freedom Watch, Inc. v. OPEC, 766
F.3d 74, 78 (D.C. Cir. 2014); Prewitt Enterprises, Inc. v.
OPEC, 353 F.3d 916, 921 (11th Cir. 2003); Rio Props., Inc.
v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002).
Thus, we conclude the Second Circuit would review
whether the grant of alternative service was proper under
an abuse of discretion standard.
The decision to allow alternative service on a foreign
defendant under FRCP 4(f)(3) “is committed to the sound
discretion of the district court.” Madu, Edozie & Madu,
P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 115
(S.D.N.Y. 2010) (quoting RSM Prod. Corp. v. Fridman, No.
06 Civ. 11512, 2007 WL 1515068, at *1 (S.D.N.Y. May 24,
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HUDSON FURNITURE, INC. v. MIZRAHI 6
2007)). Mizrahi argues that a plaintiff must show it has
attempted service by conventional means before alterna-
tive service is permitted. We do not agree. While some
courts have required such a showing, others have not.
Compare Baliga ex rel. Link Motion Inc. v. Link Motion
Inc., 385 F. Supp. 3d 212, 220 (S.D.N.Y. 2019) (“whether to
exercise discretion and grant alternative service requires
courts to evaluate . . . a showing that the plaintiff has rea-
sonably attempted to effectuate service on the defendant”),
with In re BRF S.A. Sec. Litig., 2019 WL 257971, at *2
(S.D.N.Y. Jan. 18, 2019) (“In deciding whether to . . . per-
mit alternative service under Rule 4(f)(3), some courts have
looked to whether . . . the plaintiff has reasonably at-
tempted to effectuate service on the defendant” (quoting
Devi v. Rajapaska, No. 11 Civ. 6634, 2012 WL 309605, at
*1 (S.D.N.Y. Jan. 31, 2012))); see also In re GLG Life Tech.
Corp. Sec. Litig., 287 F.R.D. 262, 266 (S.D.N.Y. 2012) (“In-
asmuch as Rule 4(f)(3) calls upon a court to exercise its dis-
cretion . . . each case must be judged on its facts.”). We
conclude no such blanket requirement exists. The district
court properly considered the evidence submitted by Hud-
son and determined that Hudson showed sufficient cause
for alternative service.
While granting alternative service is within the discre-
tion of the district court, alternative service must not vio-
late an international treaty or constitutional due process.
Rio Props., Inc., 284 F.3d at 1014–15. Here, the district
court’s grant of alternative service does neither. At the
time the district court granted alternative service, there
was no relevant international treaty in place with Austria,
where Mizrahi was believed to be residing. Mizrahi argues
that alternative service violated the Hague Convention,
but Austria did not ratify the Hague Convention until after
the time of service. J.A. 8. While Mizrahi also argues that
service by email was improper because it violated Austrian
law, alternative service under FRCP 4(f)(3) “may be
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HUDSON FURNITURE, INC. v. MIZRAHI 7
accomplished in contravention of the laws of the foreign
country.” Rio Props., Inc., 284 F.3d at 1014.
The means of alternative service also provided Mizrahi
adequate constitutional notice. To meet this requirement,
service must be “reasonably calculated, under all the cir-
cumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present
their objections.” Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 314 (1950). Hudson showed that
Greener represented Mizrahi in a similar litigation before
the same court and was presently in contact with Mizrahi.
J.A. 298–306. Hudson also provided an affidavit from Miz-
rahi that he personally used two of the emails used for ser-
vice. J.A. 292. RPost confirmed that 12 of the email
addresses opened the communications, including the two
Mizrahi admitted to using, and three of the addresses
downloaded the papers. J.A. 498–514. Further, after ser-
vice, Mizrahi appeared and challenged the grant of alter-
native service and the motion for a preliminary injunction,
showing actual notice of the litigation.
We conclude that the district court did not abuse its
discretion in granting alternative service and did not err in
denying Mizrahi’s motion to dismiss for lack of personal ju-
risdiction.
III
We now turn to the district court’s grant of a prelimi-
nary injunction against Mizrahi’s use of Hudson’s copy-
rights and trademarks. The Second Circuit reviews the
grant of a preliminary injunction for abuse of discretion.
WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 278 (2d Cir. 2012).
Under an abuse of discretion standard, factual findings are
reviewed for clear error and legal conclusions are reviewed
de novo. Oneida Nation of N.Y. v. Cuomo, 645 F.3d 154,
164 (2d Cir. 2011). A district court may grant a prelimi-
nary injunction when a plaintiff demonstrates: (1) a likeli-
hood of success on the merits; (2) irreparable harm in the
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HUDSON FURNITURE, INC. v. MIZRAHI 8
absence of an injunction; (3) the balance of hardships tips
in its favor; and (4) issuance of the injunction serves the
public interest. Id. Mizrahi challenges the district court’s
decision only as to the second factor: whether Hudson es-
tablished irreparable harm.
The district court found that Hudson would suffer ir-
reparable harm without an injunction because the ongoing
sale of unauthorized replicas causes harm to its brand, rep-
utation for craftsmanship, and consumer goodwill. J.A. 15.
Customers seeking to purchase Hudson lights will be mis-
led into purchasing counterfeit products, which may be of-
fered at lower prices on Mizrahi’s website. Id. And
consumers will not know they are purchasing unauthorized
products because Mizrahi is using Hudson’s copyrighted
images and marks to deceive customers. Id. Mizrahi ar-
gues that Hudson failed to establish irreparable harm be-
cause it did not show any proof of actual consumer
confusion or loss of customers. Mizrahi also attempts to
discredit Hudson’s evidence that Mizrahi sold a chandelier
purporting to be Hudson’s product because it came from a
third-party who did not submit an affidavit. We see no
clear error in the district court’s finding that, based on Miz-
rahi’s sale of an allegedly counterfeit Hudson chandelier,
Hudson would suffer irreparable harm without a prelimi-
nary injunction. Thus, the district court did not abuse its
discretion when granting the preliminary injunction.
CONCLUSION
Because the district court did not err in denying Miz-
rahi’s motion for reconsideration and motion to dismiss and
the court did not abuse its discretion in granting a prelim-
inary injunction, we affirm.
AFFIRMED
COSTS
Costs to Hudson.
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