No.

______

In The
Supreme Court of the United States

SHENZEN SANLIDA ELECTRICAL TECHNOLOGY

COMPANY, LIMITED; SHENZEN AVOGA
TECHNOLOGY COMPANY, LIMITED,
Petitioners,
v.

WHIRLPOOL CORPORATION;
WHIRLPOOL PROPERTIES, INCORPORATED,
Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals
for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Tao Liu
Tianyu Ju
Counsel of Record
Glacier Law LLP
251 S Lake Ave, Ste. 910
Pasadena, CA 91101
(312)499-2666
[email protected]
[email protected]
November 27, 2023 Counsel for Petitioners
 i

QUESTION PRESENTED

Should the district court consider personal

jurisdiction when issuing a preliminary injunction
order under Rule 65?
 ii

LIST OF PARTIES

All parties appear in the caption of the case on

the cover page.

CORPORATE DISCLOSURE STATEMENT

Petitioners have no parent or publicly owned

corporation owns 10% or more of the stock.

RELATED PROCEEDINGS

United States District Court for the Eastern District

of Texas:

Whirlpool Corporation; Whirlpool Properties,

Incorporated v. Shenzhen Sanlida Electrical
Technology Company, Limited; Shenzhen Avoga
Technology Company, Limited, No. 22-cv-00027.
(order granting motion for a preliminary injunction,
entered Jun. 14, 2022)

United States Court of Appeals for the Fifth Circuit:

Whirlpool Corporation; Whirlpool Properties,

Incorporated v. Shenzhen Sanlida Electrical
Technology Company, Limited; Shenzhen Avoga
Technology Company, Limited, No. 22-40376
(affirming, Aug. 25, 2023).
 iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

LIST OF PARTIES...................................................... ii
CORPORATE DISCLOSURE STATEMENT ............ ii
RELATED PROCEEDINGS ....................................... ii
TABLE OF CONTENTS ............................................iii
TABLE OF APPENDICES ......................................... v
TABLE OF AUTHORITIES ...................................... vi
PETITION FOR WRIT OF CERTIORARI ................. 1
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ......................................... 1
INTRODUCTION ....................................................... 2
STATEMENT OF THE CASE .................................... 3
REASONS FOR GRANTING THE PETITION ......... 4
I. THE COURT OF APPEALS ARE
SPLIT ON WHETHER A
PRELIMINARY INJUNCTION
ORDER UNDER RULE 65 CAN BE
ISSUED “ONLY ON NOTICE.” ............. 4
II. THE DECISION BELOW IS
INCORRECT, DANGEROUS, AND
IN A DIRECT INCONSISTENCY
WITH THIS COURT’S
PRECEDENT......................................... 6
 iv

III. THIS CASE IS AN IDEAL VEHICLE

TO PROVIDE A GUIDANCE ABOUT
THE “ONLY ON NOTICE”
REQUIREMENT UNDER RULE 65. .... 7
CONCLUSION ............................................................ 8
 v

TABLE OF APPENDICES

APPENDIX A – Order of the United States

Court of Appeals for the Fifth Circuit,
dated August 25, 2023 ............................................. A1

APPENDIX B – Order of The United States

District Court for the Eastern District of
Texas, dated June 14, 2022 .................................. A15

APPENDIX C – Report and Recommendation

of the United States District Court for the
Eastern District of Texas,
dated April 19, 2022 ............................................... A18
 vi

TABLE OF AUTHORITIES

CASES

Advanced Tactical Ordnance Sys., LLC v. Real

Action Paintball, Inc.,
751 F.3d 796 (7th Cir. 2014) .................................. 4

AST Sports Sci., Inc. v. CLF Distrib. Ltd.,

514 F.3d 1054 (10th Cir. 2008) .............................. 5

Celgard, LLC v. LG Chem, Ltd.,

624 F. App'x 748 (Fed. Cir. 2015) .......................... 5

Corrigan Dispatch Co. v. Casa Guzman, S.A.,

569 F.2d 300, 302 (5th Cir. 1978) .......................... 4

King v. Taylor,
694 F.3d 650 (6th Cir. 2012) .................................. 5

Omni Capital v. Rudolf Wolff & Co.,

484 U.S. 97 (1987) .................................................. 6

R.M.S. Titanic, Inc. v. Haver,

171 F.3d 943 (4th Cir. 1999) .................................. 5

United States v. First Nat. City Bank,

379 U.S. 378 (1965) ............................................... 7

U.S. Ass’n of Importers of Textiles & Apparel v. U.S.

Dep’t of Commerce,
413 F.3d 1344 (Fed. Cir. 2005) .............................. 5

Volkswagenwerk Aktiengesellschaft v. Schlunk,

486 U.S. 694 (1988) ................................................ 7
 vii

STATUTES

28 U. S. C. § 1254(1) ................................................... 1

Fed. R. Civ. P. 65 ....................................... 1, 2, 4, 5, 7

 1

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of

certiorari issue to review the judgment below.

OPINIONS BELOW

The order of the United States Court of

Appeals, Fifth Circuit is reported at 80 F.4th 536.
That order is found in the Appendix to the Petitioner
for a Writ of Certiorari (or “Pet. App.”), at pages A1-
A14. The order of the District Court of Eastern
District of Texas is unreported. Pet. App. A15-A17.
The report and recommendation of the Magistrate
Judge in the District Court of Eastern District of
Texas is unreported. Pet. App. A18-A23.

JURISDICTION

The judgment of the Court of Appeals, Fifth

Circuit was entered on August 25, 2023. Pet. App.
A1-A14. This Court has jurisdiction under 28 U. S. C.
§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Rule 65 of the Federal Rule of Civil

Procedure provides:

“(a) Preliminary Injunction.

 2

(1) Notice. The court may issue a

preliminary injunction only on notice
to the adverse party…”

INTRODUCTION

Rule 65 explicitly specifies the requirement

for “notice” but does not provide anything regarding
whether “service of process” is required to issue a
preliminary injunction order. In particular, since
“service of process” is intertwined with the personal
jurisdiction analysis and is one of the prerequisites
for establishing personal jurisdiction, if service of
process does not need to be considered, does it imply
that the court is not required to consider personal
jurisdiction when issuing a preliminary injunction
order under Rule 65?

The Fifth Circuit’s decision below provides an

ideal train for this Court to provide an instruction on
the interpretation of the “only on notice”
requirement under Rule 65. In particular, the Fifth
Circuit’s decision allows a plaintiff to obtain a
preliminary injunction order against a defendant
without even trying to serve process on that
defendant, deviating from the due process right,
Federal Rule of Civil Procedure.

As this Court has made clear, exercising

personal jurisdiction over a defendant requires
service of process. Therefore, the Fifth Circuit’s
decision directly contradicts with this Court’s
jurisprudence by implying that obtaining a
preliminary injunction under Rule 65 does not
 3

require personal jurisdiction; notice alone is deemed

sufficient.

This Court should grant the writ and reserve

the decision below.

STATEMENT OF THE CASE

On January 31, 2022, Respondents

(“Whirlpool”) filed a lawsuit for trademark
infringement, trademark dilution, trade dress
infringement and unfair competition under federal
and state law against Petitioners (collectively
“Shenzhen”). That same day, Whirlpool filed a
motion for a preliminary injunction including
prohibiting Shenzhen from selling, distributing,
advertising, or promoting the allegedly infringing
mixers; and destroy the alleged infringing mixers.

On March 14, 2022, Whirlpool requested a

preliminary injunction hearing, which was granted,
and a hearing before a Magistrate Judge was
scheduled for April 19, 2022. At the hearing,
Shenzhen disputed personal jurisdiction for lack of
service.

On the same day, the Magistrate Judge issued

a Report and Recommendation recommending the
granting of the preliminary injunction. Pet. App.
A18-A23. Although Defendants objected to the
Report and Recommendation, and throughout the
relevant times, Plaintiff did not even attempt to
serve Defendants. Subsequently, the District Court
adopted the Report and Recommendation and issued
 4

a preliminary injunction order. Pet. App. A15-A17.

Defendants then appealed.

On appeal, the Fifth Circuit affirmed the

preliminary injunction order and ruled that Rule 65
only requires notice, quoting Corrigan Dispatch Co.
v. Casa Guzman, S.A. and stating that “‘Rule 65(a)
does not require service of process,’ but rather
requires ‘notice to the adverse party.’ 569 F.2d 300,
302 (5th Cir. 1978).” Pet. App. A1-A14.

This petition follows.

REASONS FOR GRANTING THE PETITION

I. THE COURT OF APPEALS ARE SPLIT

ON WHETHER A PRELIMINARY
INJUNCTION ORDER UNDER RULE 65
CAN BE ISSUED “ONLY ON NOTICE.”

The circuits are split on whether a

preliminary injunction order under Rule 65 requires
“only on notice.” The decision below demonstrates
that courts are straying further from this Court’s
precedents. This case highlights a discrepancy in
how different circuit courts interpret the “notice”
requirement under Rule 65 of the Federal Rules of
Civil Procedure.

Namely, the Seventh Circuit states, “in order

for the district court’s preliminary injunction to be
valid, that court had to have personal jurisdiction
over the defendant.”). Advanced Tactical Ordnance
Sys., LLC v. Real Action Paintball, Inc., 751 F.3d
796, 800 (7th Cir. 2014). Furthermore, the Sixth
 5

Circuit concludes that “without proper service of

process, consent, waiver, or forfeiture, a court may
not exercise personal jurisdiction over a named
defendant.” King v. Taylor, 694 F.3d 650, 655 (6th
Cir. 2012). Although not explicitly addressing
preliminary injunction, the Tenth Circuit
emphasizes that even if in the preliminary stages,
the Court considers whether it has personal
jurisdiction over Defendant. AST Sports Sci., Inc. v.
CLF Distrib. Ltd., 514 F.3d 1054, 1056 (10th Cir.
2008).

The Federal Circuit concludes that “[f]ailing to

consider [the district court’s jurisdiction] was legal
error.” U.S. Ass’n of Importers of Textiles & Apparel
v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1348 (Fed.
Cir. 2005). Further, the Federal Circuit states “[a]
district court cannot enjoin a party if it does not have
jurisdiction over that party.” Celgard, LLC v. LG
Chem, Ltd., 624 F. App’x 748, 751 (Fed. Cir. 2015).

The Fourth Circuit concludes that injunctive

relief, by its very nature, can only be granted in an
in personam action commenced by one party against
another in accordance with established process.
R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 957 (4th
Cir. 1999), certiorari denied.

By contrast, the Fifth Circuit decision states

that “notice” alone is sufficient to issue a preliminary
injunction order Rule 65. Apparently, there is a
conflict among the federal court of appeals. This case
satisfies the criteria for this Court’s review as this
conflict is acknowledged, entrenched, and
widespread.
 6

In addition, this Court’s intervention would

promote consistency and uniformity in legal
interpretation nationwide. An instructive ruling on
this case would reduce legal uncertainty and
inevitable forum shopping.

II. THE DECISION BELOW IS INCORRECT,

DANGEROUS, AND IN A DIRECT
INCONSISTENCY WITH THIS COURT’S
PRECEDENT.

Certiorari should be granted because the

question presented is important. The decision below
is incorrect as it fails to consider personal
jurisdiction prior to issuing an order, and such a
decision creates a dangerous precedent for the Fifth
Circuit. It allows someone’s assets to be frozen or
destroyed “only on notice,” without “service of
process,” thus inadvertently encouraging forum
shopping.

This Court has never endorsed this result.

Rather, this Court is clear on that to obtain personal
jurisdiction over a defendant, a court must have (1)
proof of “notice to the defendant,” (2) “a
constitutionally sufficient relationship between the
defendant and the forum,” and (3) “authorization for
service of a summons on the defendant.” Omni
Capital v. Rudolf Wolff & Co., 484 U.S. 97, 108 S. Ct.
404, 98 L. Ed. 2d 415 (1987).

Moreover, this Court is clear on that

regardless of nationality, all people or entity are
assured of either personal service, which typically
will require service abroad and trigger the Hague
 7

Convention or substituted service. Volkswagenwerk

Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705, 108
S. Ct. 2104, 2111, 100 L. Ed. 2d 722 (1988) (citing
Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)).

Specifically, this Court states that “[o]nce

personal jurisdiction of a party is obtained, the
District Court has authority to order it to ‘freeze’
property under its control, whether the property be
within or without the United States.” United States v.
First Nat. City Bank, 379 U.S. 378, 384, 85 S. Ct.
528, 531, 13 L. Ed. 2d 365 (1965).

Here, while the district court issued a

preliminary injunction order, the district court fails
to consider service of process. Shenzhen’s appeal
emphasizes the fundamental principle of due process.
The question of whether service of process is one of
the prerequisites for a preliminary injunction order
speaks to the core of constitutional rights. Therefore,
an instructive ruling from this Court can provide
clarity on “only on notice” requirement under Rule
65, service of process and upholding due process
rights, offering essential guidance to lower courts.

III. THIS CASE IS AN IDEAL VEHICLE TO

PROVIDE A GUIDANCE ABOUT THE
“ONLY ON NOTICE” REQUIREMENT
UNDER RULE 65

The question presented here raises an issue of

fundamental importance, and its correct dispositions
are essential to the proper and uniform operation of
the due process protection nationwide. This case
 8

further raises questions about fairness in litigation.

This Court’s grant of certiorari could establish
standards that ensure fairness and equitable
treatment for all parties in cases involving
preliminary injunction order.

In light of the significant implications for legal

uniformity, due process rights, and fairness in
litigation, this case is undeniably vital and warrants
the attention of this Court. An instruction from this
Court will promote consistency and guide future
legal proceedings in similar cases, thereby benefiting
not only the parties directly involved but also the
broader legal landscape in the United States.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

/s/ Tianyu Ju
Tao Liu
Tianyu Ju
Counsel of Record
Glacier Law LLP
251 S Lake Ave, Ste. 910
Pasadena, CA 91101
(312)499-2666
[email protected]
[email protected]
Counsel for Petitioners