Opinion
C22-1120JLR
02-15-2023
AMAZON.COM, INC., et al., Plaintiffs, v. KEXLEWATERFILTERS, et al., Defendants.
ORDER
JAMES L. ROBART, United States District Judge.
I. INTRODUCTION
Before the court is Plaintiffs Amazon.com, Inc., Amazon.com Services LLC (together, “Amazon”), General Electric Company, and Haier U.S. Appliance Solutions, Inc.'s (together, “GE,” and collectively, “Plaintiffs”) ex parte motion for alternative service of process. (Mot. (Dkt. # 18).) Plaintiffs seek leave to serve 16 named Defendantsusing the email addresses associated with their Amazon.com selling accounts. (See generally Mot.) None of the Defendants have been served and none have appeared in this action. (See generally Dkt.) The court has considered the motion, all materials submitted in support of the motion, the relevant portions of the record, and the governing law. Being fully advised, the court DENIES Plaintiffs' ex parte motion for alternative service of process without prejudice.
These Defendants are the individuals and entities doing business as the following Amazon selling accounts: KexleWaterFilters, HOM-POWER Store, NO-MIIMS, CLANORY, Tomorrow-Citystor, HOMASZ, Romarotic, Dropsales, Tamei-US, DanielJames, icepy, WanHaoFilter, HNAMZ-US, DOOBOO-US, Purtech, and Barcelona-US. (Compl. (Dkt. # 1) ¶¶ 13-28.) Plaintiffs also allege claims against ten unknown Doe Defendants whom they allege work “in active concert with each other and the named Defendants.” (Id. ¶ 29.)
II. BACKGROUND
Amazon and GE bring claims against 16 named Defendants for allegedly selling counterfeit GE-branded refrigerator water filters on Amazon.com that infringe on GE's registered trademarks (the “GE Trademarks”). (Compl. ¶ 3 (describing the GE Trademarks); id. ¶¶ 6-7, 53-87 (describing the allegedly infringing products and the named Defendants' alleged roles in advertising, marketing, offering, and selling those products).) Amazon asserts that once it verified that the named Defendants were selling counterfeit GE-branded products, it shut down those Defendants' Amazon selling accounts (the “Selling Accounts”) and issued full refunds to customers who purchased the counterfeit products. (Id. ¶ 93.)
Four of the named Defendants provided business addresses in the United States when they created their Selling Accounts. (Id. ¶¶ 13, 15, 19, 28.) The remaining named Defendants provided business addresses in China. (Id. ¶¶ 14, 16-18, 20-27.) Each named Defendant also provided an email address and banking information for its Selling Account. (Id. ¶ 47.) Amazon alleges that these Defendants “took active steps to mislead Amazon and conceal their true locations and identities by providing false information.” (Id.) Plaintiffs have “attempted to uncover these Defendants' identities and locations by analyzing Amazon's records about the Selling Accounts, [and] enlisting private investigators who used both public records and investigative tools to research the contact information Defendants provided to Amazon when registering the Selling Accounts,” but despite their efforts, Plaintiffs have been “unable to locate the true identities of the Defendants or their current whereabouts.” (2/7/23 Lewis Decl. (Dkt. # 19) ¶ 3.)
Plaintiffs filed their complaint for damages and equitable relief on August 11, 2022. (Compl. at 1.) Plaintiffs then attempted to serve six of the Defendants at the most recent U.S. business addresses they had provided to Amazon, but in each case, Plaintiffs' process server was unable to locate an appropriate individual on whom to serve the complaint, and Plaintiffs determined that the addresses these Defendants had provided were false, not associated with the Defendants, or invalid. (2/7/23 Lewis Decl. ¶ 3.) For the remaining Defendants, Plaintiffs' investigation revealed that many of the U.S. and Chinese addresses provided by the Defendants “do not correspond with any location or are not affiliated with Defendants.” (Id. ¶ 4.) Plaintiffs also had investigators research the most recently provided business addresses in China for ten of the Defendants. (Id. ¶ 5.) The investigators found that for seven of these Defendants the addresses were inaccurate or not associated with Defendants' businesses, and for three of the Defendants, the investigators were unable to confirm whether the addresses were invalid. (Id.)
Barcelona-US, CLANORY, DooBoo-US, HNAMZ-US, KexleWaterFilters, and Tomorrow-CityStor. (Lewis Decl. ¶ 3.)
Plaintiffs then moved ex parte for expedited discovery in an effort to determine Defendants' true identities. (Disc. Mot. (Dkt. # 11).) The court granted the motion on October 26, 2022. (10/26/22 Order (Dkt. # 14).) Specifically, the court authorized Plaintiffs to “serve Rule 45 subpoenas to obtain information regarding Defendants' true identities, locations, and the scope of the alleged counterfeiting scheme” from certain third-party banks, email address providers, and storage facilities, and inbound shipping addresses. (Id.; see Disc. Mot. at 2-3.) On November 9, 2022, the court granted Plaintiffs' ex parte motion for an extension of time to serve the named Defendants to allow Plaintiffs to complete the expedited discovery. (11/9/22 Order (Dkt. # 17).) The results of Plaintiffs' subpoenas have been disappointing: Plaintiffs did not receive a response from CitiBank; First Century Bank responded that it does not create or maintain the requested records; Deutsche Bank was unable to locate responsive documents; Wells Fargo was unable to provide the requested information because it was unable to locate the businesses or account numbers associated with the Selling Accounts; UPLUS's facility appeared to be permanently closed when service was attempted; Microsoft Corporation is still collecting information; and Payoneer, Inc. has produced information indicating that four Defendants-Dropsales, Tamei-US, icepy, and Purtech-are likely located in China. (2/7/23 Lewis Decl. ¶ 6.)
Plaintiffs now ask the court to authorize them to serve the named Defendants using the email addresses associated with the Defendants' Selling Accounts. (Mot.; see 2/7/23 Haskel Decl. (Dkt. # 20) ¶ 5 (listing the email addresses Defendants provided when they registered their Selling Accounts).) Plaintiffs do not indicate whether they have attempted to contact any of the Defendants using the email addresses associated with their Selling Accounts, nor do they represent that any of the Defendants have notice that this lawsuit is pending. (See generally 2/7/23 Lewis Decl.; 2/7/23 Haskel Decl.)
III. ANALYSIS
Federal Rule of Civil Procedure 4(h) governs service of process on foreign businesses. Fed.R.Civ.P. 4(h). Rule 4(h)(2) authorizes service of process on a foreign corporation “at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).” Fed.R.Civ.P. 4(h)(2). Rules 4(f)(1) and 4(f)(2) provide specific methods of serving process on individuals in foreign countries. See Fed.R.Civ.P. 4(f)(1)-(2). Rule 4(f)(3) allows international service by a method not listed in Rule 4(f)(1) or (2) if the method is “not prohibited by international agreement, as the court orders.” Fed.R.Civ.P. 4(f)(3); see also Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1014-15 (9th Cir. 2002). As long as the method of service is “court-directed and not prohibited by an international agreement, service of process ordered under Rule 4(f)(3) may be accomplished in contravention of the laws of the foreign country.” Rio Props., 284 F.3d at 1014. “Service under Rule 4(f)(3) is neither a ‘last resort' nor ‘extraordinary relief'”; rather, “[i]t is merely one means among several which enables service of process on an international defendant.” Id. at 1015.
“Even if facially permitted by Rule 4(f)(3),” however, “a method of service of process must also comport with constitutional notions of due process.” Id. at 1016. Thus, the “method of service crafted by the district court must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'” Id. at 1016-17 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Thus, the court proceeds to analyze (1) whether service of process by email is permitted under Rule 4(f)(3) and (2) whether that method comports with due process.
A. Rule 4(f)(3)
First, the court must determine whether service of process on defendants in China by email is “prohibited by international agreement.” Fed. R. Civ. P 4(f)(3). The court concludes that service of process by email is not prohibited by international agreement and is therefore permitted by Rule 4(f)(3).
China is a signatory to the Hague Convention. See Contracting Parties, Hague Conference on Private International Law, https://www.hcch.net/en/instruments/ conventions/status-table/?cid=17 (last visited February 15, 2023). At the outset, it is questionable whether the Hague Convention applies to the facts of this case. The Hague Convention expressly does not apply where the address of the foreign defendant is unknown. See Hague Convention, art. 1 (“This Convention shall not apply where the address of the person to be served with the document is not known.”); see also Amazon.com v. Tian, No. C21-0159TL, 2022 WL 486267, at *3 (W.D. Wash. Feb. 17, 2022) (citing cases that authorized service by email where the defendants' physical addresses were unknown). Thus, here, where Plaintiffs have been unable to identify valid physical business addresses for the named Defendants, the Hague Convention arguably does not apply in the first instance and therefore does not prohibit service of process by email.
Even if the Hague Convention applies, the court concludes that service by email is a permissible method of service under Rule 4(f)(3). Service through a country's Central Authority is the principal means of service under the Hague Convention. See Rubies Costume Co. v. Yiwu Hua Hao Toys Co., Ltd., No. C18-1530RAJ, 2019 WL 6310564, at *2 (W.D. Wash. Nov. 25, 2019). Article 10 of the Hague Convention, however, “preserves the ability of parties to effect service through means other than a recipientnation's Central Authority as long as the recipient-nation has not objected to the specific alternative means of service used.” Id. (citing Hague Convention, art. 10). China has expressly rejected service through the means enumerated in Article 10, including service through postal channels and through its judicial officers. Id.; see Declaration/Reservation/Notification, https://www.hcch.net/en/instruments/conventions/ status-table/notifications/?csid=393&disp=resdn (last visited February 15, 2023) (stating the People's Republic of China “oppose[s] the service of documents in the territory of the People's Republic of China by the methods provided by Article 10 of the Convention”). Article 10, however, does not mention service by email or other electronic communications, and multiple courts in the Ninth Circuit have concluded that China's objection to Article 10 does not prohibit alternative service of process by electronic communications to defendants located in China. See Rubies Costume Co., 2019 WL 6310564, at *3 (citing cases authorizing service on defendants located in China via email and/or online messaging systems); id. at *4 (authorizing service of process on defendants located in China via email and Amazon.com seller account storefronts). Consistent with these cases, the court concludes that the Hague Convention and Rule 4(f)(3) do not prohibit service of process on Defendants by email.
B. Due Process
Second, the court considers whether service of process on Defendants using the email addresses associated with their Selling Accounts comports with constitutional due process-that is, whether this method of service is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314.
Plaintiffs rely on several cases for their argument that service of process on Defendants by email is appropriate here. (Mot. at 6; id. at 6 n.2.) In most of these cases, however, there were indicia that the defendants would in fact receive notice of the lawsuit if the plaintiffs served them by email. In Rio Properties, 284 F.3d at 1017, for example, the plaintiff emailed the summons and complaint to the defendant's international courier, which provided the documents to the defendants' attorney, who in turn refused to receive service of process on behalf of his client. In Keck v. Alibaba.com, Inc., No. 17-CV-05672-BLF, 2018 WL 3632160, at *2 (N.D. Cal. July 31, 2018), the plaintiff's private investigator sent test messages to the defendants' Alibaba.com or AliExpress.com storefronts through the AliExpress.com message system. The investigator did not receive any error messages; none of the messages were returned as undeliverable; and many of the defendants responded to the messages. Id. The same is true in Bright Solutions for Dyslexia, Inc. v. Lee, No. 15-CV-01618-JSC, 2017 WL 10398818, at *3 (N.D. Cal. Dec. 20, 2017), report and recommendation adopted, No. 15-CV-01618-CW, 2018 WL 4927702 (N.D. Cal. Mar. 26, 2018), in which the plaintiff's investigator sent messages to the associated email addresses and received no errors from at least two of the addresses. See also Toyo Tire & Rubber Co. v. CIA Wheel Grp., No. 15-0246-DOC (DFMX), 2016 WL 1251008, at *3 (C.D. Cal. Mar. 25, 2016) (granting alternative service where plaintiff had successfully sent messages to the defendants' email addresses).
The court agrees with the approach set forth in these cases, and concludes that the due process requirement for alternative service by email is satisfied when the plaintiff demonstrates that the email addresses at issue are valid and are successfully receiving messages. For example, in Amazon.com, Inc. v. Tian, No. C21-00159TL, 2022 WL 486267, at *3 (W.D. Wash. Feb. 17, 2022), the court denied alternative service by email where there was no evidence that the defendants had actual notice of the lawsuit and where the plaintiffs did not point to “recent communications with the defendants that demonstrated the reliability of the proposed form of alternative service.” See also Padded Spaces LLC v. Weiss, No. C21-0751JLR, 2022 WL 1423701, at *2 (W.D. Wash. May 5, 2022) (granting alternative service by email where counsel had successfully sent messages about the lawsuit and a copy of the complaint to the email addresses associated with the defendant's Selling Account and through its Amazon.com storefront). Here, Plaintiffs have not demonstrated that the email addresses associated with Defendants' Selling Accounts are still valid email addresses and that service of process via email is likely to provide Defendants with notice of this lawsuit. (See generally 2/7/23 Lewis Decl.; 2/7/23 Haskel Decl.) Therefore, the court DENIES Plaintiffs' motion for alternative service by email without prejudice. Plaintiffs may renew their motion with evidence of recent communications to Defendants that demonstrates that service by email is a reliable method to provide Defendants with notice of the pendency of this action.
IV. CONCLUSION
For the foregoing reasons, the court DENIES Plaintiffs' ex parte motion for alternative service of process (Dkt. # 18) without prejudice to renewing their motion with evidence that Defendants' Selling Account email addresses remain a reliable means of communicating with Defendants.