Enovative Technologies, LLC v. Gabriel Reuven Leor
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999556331-2] Originating case number: 1:14-cv-03956-JKB Copies to all parties and the district court/agency. [999640583]. Mailed to: Leor. [15-1154]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1154
ENOVATIVE TECHNOLOGIES, LLC,
Plaintiff - Appellee,
v.
GABRIEL REUVEN LEOR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
James K. Bredar, District Judge.
(1:14-cv-03956-JKB)
Submitted:
July 28, 2015
Decided:
August 14, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gabriel Reuven Leor, Appellant Pro Se.
Lori Vaughn Ebersohl,
APATOFF PETERS EBERSOHL, Falls Church, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Enovative
Technologies,
LLC
(“Enovative”),
filed
a
civil
complaint against Gabriel Reuven Leor (“Leor”), the former Chief
Executive Officer (“CEO”) of Enovative, alleging that he was
engaged in conduct purposely designed to economically damage and
irreparably harm his former employer by hijacking websites used
by Enovative.
The district court granted Enovative’s motions
for a temporary restraining order and a preliminary injunction
in
the
action
below.
Leor
appeals
from
those
two
orders,
raising numerous issues.
The
district
issues
court
Leor
had
raises
on
diversity
appeal
are
jurisdiction;
whether:
(2)
(1)
the
Virginia
law
permits a suit by a limited liability company against its former
chief executive officer in federal court; (3) the employment
agreement relied on by Enovative permits litigation in federal
court in Baltimore; (4) a federal court can order an owner of a
website
to
relinquish
(5) the
district
service
of
court
process
via
ownership
had
in
a
personal
email
to
Leor
preliminary
jurisdiction
in
hearing;
to
Thailand;
effect
(6)
the
district court could grant injunctive relief when money damages
were available; (7) the district court properly ordered fines
and attorney’s fees on preliminary motions; (8) the district
court improperly handled Leor’s motion to dismiss because the
court
decided
the
issue
on
the
2
basis
of
subject
matter
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jurisdiction before Enovative had filed a response to Leor’s
motion to dismiss; (9) Enovative could rely on extracts of a
transcript
properly
that
Leor
overruled
did
not
Leor’s
have;
(10)
objections
the
during
district
the
court
evidentiary
hearings; and (11) the district court erred by denying Leor, who
was proceeding pro se, permission to file electronically.
The record does not contain a transcript of court hearings
conducted on February 12 and 13, 2015.
An appellant has the
burden of including in the record on appeal a transcript of all
parts
of
the
appeal.
proceedings
material
to
the
issues
raised
Fed. R. App. P. 10(b)(1); 4th Cir. R. 10(c)(1).
on
An
appellant proceeding on appeal in forma pauperis is entitled to
transcripts at government expense only in certain circumstances
not applicable here.
produce
a
28 U.S.C. § 753(f) (2012).
transcript
or
to
qualify
for
the
By failing to
production
of
transcripts at government expense, Leor has thus waived review
of the issues on appeal that depend upon the transcript to show
error.
See generally Fed. R. App. P. 10(b)(2); Keller v. Prince
George’s Cnty., 827 F.2d 952, 954 n.1 (4th Cir. 1987).
Because
Leor fails to provide this court with the transcripts of the
hearings
raised
conducted
in
addressed.
issues
on
1,
February
3,
4,
8,
12
9,
and
and
13,
10
2015,
cannot
his
be
claims
properly
Thus, by failing to submit to the court the above
transcripts, Leor has waived appellate review of these issues.
3
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We address Leor’s remaining issues in turn.
In issue 2
Leor, relying on Va. Code Ann. § 13.1-1021.1, 1024(J), argues
that there was no diversity between the parties because he was
the CEO of a Virginia limited liability company (“LLC”) and thus
all parties were from Virginia.
This court reviews a district
court’s factual findings with respect to jurisdiction for clear
error.
See Sligh v. Doe, 596 F.2d 1169, 1171 & 1171 n.9 (4th
Cir. 1979) (reviewing district court’s finding of jurisdictional
fact that parties had diversity of citizenship under the clearly
erroneous standard of review and describing the applicability of
such standard as plain).
Our review of the Virginia law reveals
no reversible error by the district court.
Moreover, Leor has
arguably waived this issue, by failing to provide the relevant
transcripts, because the district court previously rejected his
jurisdictional arguments in its February 19, 2015 order.
The
February 19 order specifically denied Leor’s motion to dismiss
for lack of jurisdiction relying on “the reasons stated in open
court on February 12.”
In
issue
5
Leor,
(E.R. 360).
who
lives
in
Thailand,
court’s personal jurisdiction over him via email.
this
case,
Fed.
R.
Civ.
P.
4(f)(3)
allows
for
questions
the
As applied to
service
upon
individuals in a foreign country by other means not prohibited
by
international
agreement
as
may
be
directed
by
the
court.
Rule 4(f) does not denote any hierarchy or preference for one
4
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method of service over another.
Rio Props., Inc. v. Rio Int’l
Interlink,
(9th
284
F.3d
1007,
1015
Cir.
2002).
The
only
limitations on Rule 4(f)(3) are that the means of service must
be
directed
by
the
court
international agreement.
and
Id.
must
not
be
prohibited
by
“Service of process under Rule
4(f)(3) is neither a ‘last resort’ nor ‘extraordinary relief.’
It is merely one means among several which enables service of
process on an international defendant.”
Id. (internal citation
omitted).
A court is afforded wide discretion in ordering service of
process under Rule 4(f)(3), which “provides the Court with . . .
flexibility and discretion . . . empowering courts to fit the
manner of service utilized to the facts and circumstances of the
particular case.”
In re Int’l Telemedia Assocs., Inc., 245 B.R.
713, 719 (Bankr. N.D. Ga. 2000) (granting Rule 4(f)(3) motion
approving service to defendant’s last-known email address).
In
order to fulfill due process requirements under Rule 4(f)(3), a
court
must
approve
a
all
method
the
of
service
circumstances”
that
is
to
give
“reasonably
calculated
under
notice
to
defendant.
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950).
In
its
December
24
order,
the
district
court
granted
Enovative permission to serve Leor by electronic mail under Rule
4(f)(3),
finding
that:
the
service
5
complied
with
the
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constitutional
and
due
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process
notice
requirements
under
Mullane; Leor had left the United States and moved to Thailand;
Enovative
Leor’s
had
searched
mailing
diligently,
address;
and
yet
that
unsuccessfully,
Leor
had
exhibited
for
a
willingness to communicate with Enovative by electronic mail.
(E.R.
167-68).
The
electronic
mail
agreement,
including
court
was
not
found
the
district
Thailand,
court’s
alternative
prohibited
and
motion for alternative service.
in
that
by
thus
any
finding
jurisdiction over Leor via email.
that
by
international
granted
(E.R. 168).
service
Enovative’s
We find no abuse
it
had
personal
See Rule 4(f)(3); In re Int’l
Telemedia Assocs., Inc., 245 B.R. at 719.
In
issue
6
Leor
asserts
that
injunctive
relief
was
unnecessary because all the relief in the complaint could be
quantified with damages.
We find no reversible error in the
district court’s decision to grant a preliminary injunction.
E.
Tenn. Natural Gas Co. v. Sage, 361 F.3d 808, 828 (4th Cir. 2004)
(noting that factual determinations are reviewed for clear error
and legal conclusions de novo).
At the time that Enovative
moved for preliminary injunctive relief, Leor was in a position
to further damage its reputation vis-à-vis its customers and to
further interfere with its business relationships because he had
hijacked
two
of
the
websites
the
products.
6
company
used
to
sell
its
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For issue 7 Leor argues that this court disfavors attorney
fees in a preliminary hearing, questions the accuracy of the
$1,000 per day fine, and why the fines are paid to the United
States.
This claim is arguably waived due to Leor’s failure to
provide transcripts of the February 12 and 13 hearings because
the
court
granted
Enovative’s
motion
for
sanctions,
civil
contempt, attorney’s fees, and costs for “reasons discussed in
open court.”
Cir.
R.
(E.R. 361).
10(c)(1).
See Fed. R. App. P. 10(b)(2); 4th
Moreover,
the
district
court
applied
the
correct law, relying on In re Gen. Motors Corp., 61 F.3d 256,
258 (4th Cir. 1995), and found it had the authority to impose
sanctions for civil contempt to coerce Leor’s obedience with
that order and to compensate Enovative for losses because of
Leor’s
Also,
failure
the
litigants
to
Supreme
into
follow
Court
the
has
compliance.
court’s
rulings.
allowed
daily
See
Bagwell, 512 U.S. 821, 829 (1994).
generally
(E.R.
fines
Int’l
to
361).
coerce
Union
v.
Thus, this claim also lacks
merit.
In issue 11 Leor alleges that the district court erred by
denying him permission to file electronically.
however,
to
show
entitlement
to
file
Leor has failed,
electronically
in
the
district court and therefore has shown no reversible error on
appeal.
Thus, this claim fails.
7
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Accordingly,
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while
we
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grant
leave
to
proceed
in
forma
pauperis, we affirm for the above reasons and for those stated
by the district court.
Enovative Techs., LLC v. Leor, No. 1:14-
cv-03956-JKB (D. Md. Dec. 18, 2014 & Jan. 6, 2015).
We dispense
with oral argument because the facts and legal contentions are
adequately
presented
in
the
materials
before
this
court
and
argument would not aid the decisional process.
AFFIRMED
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