Xcentric Ventures LLC v. Karsen Limited et al

Filing 7

ORDER granting in part and denying in part plaintiff's 6 Motion to determine sufficiency of service or for leave to perform alternate service. Plaintiff is granted leave to serve defendant via email. Signed by Judge Frederick J Martone on 07/26/11.(ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Xcentric Ventures, LLC,
Plaintiff,

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vs.

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Karsen, Ltd., et. al.,
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Defendants.
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No. CV 11-1055-PHX-FJM
ORDER

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The court has before it plaintiff's motion to determine sufficiency of service or for

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leave to perform alternative service (doc. 6). Defendants have not responded or otherwise

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appeared in the case.

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Plaintiff moves for an order determining whether it has effectively accomplished

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service of process on defendant Karsen. Plaintiff is the operator of a consumer complaint

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website. It discovered that a website owned and operated by defendant allegedly contains

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certain copyrighted material. Pursuant to the Digital Millennium Copyright Act, 17 U.S.C.

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§ 512, et. seq., plaintiff sent a series of take-down notices to non-party Google, Inc. to

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demand that Google remove the infringing content from its search index and inform

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defendant that it is infringing on plaintiff's copyrights. See § 512(c)(1)(C). Google complied

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with the take-down notice. Pursuant to the statutory scheme, defendant responded by serving

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a counter-notice on Google to contest the accuracy of the initial notice. To be effective, the

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counter-notice must contain certain things including: "the subscriber's name, address, and

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telephone number, and a statement that the subscriber consents to the jurisdiction of the

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Federal District Court . . . and that the subscriber will accept service of process from the

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person who provided notification under subsection (c)(1)(C) or an agent of such person." §

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512(g)(3)(D). Plaintiff verified with Google that defendant expressly agreed to those

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requirements.

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infringement. See § 512(g)(2)(C) (stating that unless a party files an action seeking a court

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order to prohibit the infringing activity, the service provider can restore the removed

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material). Plaintiff attempted to serve defendant a copy of the summons and complaint via

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Federal Express delivery to the address provided in St. Petersburg, Russia and via email.

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Delivery at the Russian address was unsuccessful because the address was "incorrect"

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according to FedEx. On June 13, 2011, defendant emailed plaintiff in response to plaintiff's

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emailed service of process. Defendant generally objected to the lawsuit and included a

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response, which it asked plaintiff to file with the court. In a later email correspondence,

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defendant argued that it never waived service of process and any service must be in

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compliance with the Hague Service Convention.

Plaintiff then instituted this action alleging copyright and trademark

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It is clear to the court that defendant has notice of the lawsuit and is evading service

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of process. By filing the counter-notice, defendant expressly agreed to accept service of

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process at its Russian address. Plaintiff attempted to perform service there but was

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unsuccessful. Defendant also purports not to understand the English language or the

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American court system, yet it corresponds sufficiently in English and appears capable of

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drafting a responsive pleading, as evidenced by the response it emailed plaintiff. Plaintiff

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has made other diligent, but unsuccessful, efforts to locate an alternative mailing address.

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In the absence of a correct address, plaintiff cannot personally serve defendant in Russia. It

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seems the only medium effective at reaching defendant is email.

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We cannot, however, find that plaintiff has already accomplished service of process.

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While defendant did agree to accept service of process when it filed the counter-notice,

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plaintiff was unsuccessful in serving defendant by conventional means at its Russian address.
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Service by alternative methods, such as email, is only effective after court approval. See Rio

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Props., Inc. v. Rio Int'l. Interlink, 284 F.3d 1007, 1018 (9th Cir. 2002) (stating that email

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service is not available absent a Fed R. Civ. P. 4(f)(3) court decree); see also Fed. R. Civ. P.

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4(h)(2) (authorizing service of process on a foreign business in the manner prescribed by

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Rule 4(f)).

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Therefore, we will grant plaintiff leave to serve defendant via email. Service by email

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in circumstances where the defendant is evading service of process and it is the only method

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reasonably calculated to appraise defendant of the pendency of the action is permissible. See

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Rio Props., 284 F.3d at 1017 (approving an order granting leave to serve by email under

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similar circumstances); see also Liberty Media Holdings, LLC v. Vingay.com, No. CV-11-

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0280-PHX-LOA, 2011 WL 810250 (D. Ariz. March 3, 2011) (permitting service by email).

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Moreover, alternative methods of service in Russia, even those not required under the Hague

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Service Convention, are permissible, since Russia unilaterally suspended all judicial

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cooperation with the United States in 2003. See Nuance Commc'ns., Inc. v. Abby Software,

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626 F.3d 1222, 1237-38 (9th Cir. 2010) (holding that a district court erred in requiring

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service upon a Russian corporation to be in compliance with the Hague Service Convention).

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As the Ninth Circuit stated, "when faced with an international e-business scofflaw, playing

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hide-and-seek with the federal court, email may be the only means of effecting service of

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process." Rio Props., 284 F.3d at 1018.

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Therefore we GRANT in part and DENY in part plaintiff's motion (doc. 6). We
GRANT plaintiff leave to serve defendant via email.
DATED this 26th day of July, 2011.

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