Twitter, Inc. v. Skootle Corp. et al

Filing 41

MOTION Motion to Serve Foreign Defendants by Alternative Means filed by Twitter, Inc.. Motion Hearing set for 7/12/2012 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. Responses due by 6/20/2012. Replies due by 6/27/2012. (Attachments: # 1 Proposed Order, # 2 Certificate/Proof of Service)(Graves, Charles) (Filed on 6/6/2012)

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DAVID H. KRAMER, State Bar No. 168452
CHARLES T. GRAVES, State Bar No. 197923
RIANA S. PFEFFERKORN, State Bar No. 266817
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Plaintiff
Twitter, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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TWITTER, INC., a Delaware corporation,

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Plaintiff,
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v.
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SKOOTLE CORP., a Tennessee corporation; JL4 )
WEB SOLUTIONS, a Philippines corporation;
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JUSTIN CLARK, an individual, d/b/a
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TWEETBUDDY.COM; JAMES KESTER, an
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individual; JAYSON YANUARIA, an
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individual; JAMES LUCERO, an individual; and )
GARLAND E. HARRIS, an individual,
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Defendants.
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CASE NO.: 3:12-CV-01721 SI
PLAINTIFF’S NOTICE OF MOTION
AND MOTION TO SERVE FOREIGN
DEFENDANTS BY ALTERNATIVE
MEANS

Date:
Time:
Dept:
Before:

Thursday, July 12, 2012
9:00 AM
Courtroom 10, 19th Floor
Honorable Susan Illston

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PLAINTIFF’S NOTICE OF MOTION AND
MOTION TO SERVE FOREIGN DEFENDANTS BY
ALTERNATIVE MEANS

CASE NO. 3:12-CV-01721 SI

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NOTICE OF MOTION AND MOTION

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PLEASE TAKE NOTICE that on Thursday, July 12, 2012, at 9:00 AM, or as soon as the

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Court’s calendar permits, in Courtroom 10, 19th Floor of the United States District Courthouse,

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450 Golden Gate Avenue, San Francisco, CA 94102, before the Honorable Susan Illston, Plaintiff

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Twitter, Inc. (“Twitter” or “Plaintiff”) will and hereby does move this Court, pursuant to Local

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Rule 7-1 and Federal Rule of Civil Procedure 4(f)(3), for an order authorizing service by

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alternative means, namely email, on Defendants Jayson Yanuaria (“Yanuaria”) and JL4 Web

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Solutions (“JL4”) (collectively, “Foreign Defendants”).1

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Despite repeated efforts, Plaintiff has been unable to serve the Foreign Defendants at the

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physical addresses with which Plaintiff believed the respective Foreign Defendants to be

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associated based on extensive investigation. Plaintiff has no information regarding other physical

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addresses associated with the Foreign Defendants. In order to prevent further delay, Plaintiff

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requests leave to serve the Foreign Defendants by email.

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This motion is based upon the Memorandum of Points and Authorities below, the

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Declaration of Charles T. Graves in support of the instant motion (“Graves Decl.”), Exhibits A

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and B attached thereto, and the files and records in this action.

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As a courtesy, Plaintiff plans to send a copy of this motion and supporting documents to
Yanuaria and JL4 by email to the email addresses noted infra.
PLAINTIFF’S NOTICE OF MOTION AND
MOTION TO SERVE FOREIGN DEFENDANTS BY
ALTERNATIVE MEANS

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CASE NO. 3:12-CV-01721 SI

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MEMORANDUM OF POINTS AND AUTHORITIES

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed the instant action against the Foreign Defendants on April 5, 2012. (ECF

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No. 1). Plaintiff’s Complaint alleges, and Plaintiff believes, that the Foreign Defendants are

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located in the Philippines. (Id., ¶ 5). Since filing the Complaint, Plaintiff has made several

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attempts in good faith to serve the Foreign Defendants pursuant to Federal Rule of Civil Procedure

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Rule 4(f)(2)(C)(ii). However, these attempts have been, thus far, unsuccessful. Accordingly,

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Plaintiff hereby respectfully requests that the court enter an order for Plaintiff to serve the Foreign

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Defendants via email pursuant to Federal Rule of Civil Procedure 4(f)(3). As more fully explained

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below, service via this means is not prohibited by international agreement and is reasonably

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calculated to provide actual notice of this case to the Foreign Defendants.

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As alleged in the Complaint, Defendant JL4 is a corporation incorporated in the

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Philippines, and Defendant Yanuaria, JL4’s principal officer, is an individual domiciled in the

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Philippines; both conduct business in California. (ECF No. 1, ¶ 5). JL4 and Yanuaria are

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responsible for the Twitter spam software known as TweetAttacks. (Id., ¶ 32). The court issued

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summonses as to Yanuaria and JL4 on April 5, 2012. (ECF No. 3, pp. 3, 7). Plaintiff thereafter

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attempted to serve process on the Foreign Defendants pursuant to Federal Rules of Civil

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Procedure 4(f)(2)(C)(ii) and 4(h)(2)2 on two occasions: first on April 11, 2012 (ECF Nos. 6, 7),

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and again on May 3, 2012. (ECF Nos. 12, 13).

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Plaintiff made two unsuccessful attempts to serve the Foreign Defendants at addresses
Plaintiff gathered in the course of an investigation it conducted prior to filing the Complaint.

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Rule 4(f)(2)(C)(ii) provides for service on an individual in a foreign country “using any
form of mail that the clerk addresses and sends to the individual and that requires a signed
receipt,” “unless prohibited by the foreign country’s law.” FED. R. CIV. P. 4(f)(2)(C)(ii). In turn,
Rule 4(h)(2) allows service on foreign corporations in any manner allowed by Rule 4(f), except
for personal service. FED. R. CIV. P. 4(h)(2). Accordingly, throughout this motion, Plaintiff’s
arguments with respect to Rule 4(f)(3) apply with equal force to Rule 4(h)(2), which applies to
foreign corporate defendant JL4. Plaintiff notes that service by mail is permitted under
Philippines procedural rules. See RULES OF COURT, Pt. I, R. 13, §§ 5, 7 (Phil.), available at
http://sc.judiciary.gov.ph/rulesofcourt/RULES%20OF%20COURT.htm#rule_13 (last visited
June 4, 2012).
PLAINTIFF’S NOTICE OF MOTION AND
MOTION TO SERVE FOREIGN DEFENDANTS BY
ALTERNATIVE MEANS

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CASE NO. 3:12-CV-01721 SI

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(Graves Decl. at ¶¶ 4-5). Based on the information gathered in that investigation, at the times it

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attempted service, Plaintiff believed that Yanuaria and JL4 maintained and were associated with

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the respective physical addresses in the Philippines at which Plaintiff attempted to serve them.

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(Graves Decl. at ¶ 6). Plaintiff has no information about any other physical addresses currently

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associated with either Yanuaria or JL4. (Graves Decl. at ¶ 7).

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Also based on information gathered in the investigation, Plaintiff believes that Yanuaria is

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married to a woman named Maria “Lou” Lourdes Macabasco-Yanuaria. (Graves Decl. at ¶ 8).

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Additionally, based on information from its original investigation and subsequent investigative

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efforts, Plaintiff believes that Yanuaria, the principal officer of JL4, is associated with certain

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email addresses including but not limited to [e-mail], [e-mail],

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and [e-mail]; that Yanuaria has recently been using these email addresses to

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communicate with TweetAttacks customers; and that he continues to use these email addresses for

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TweetAttacks-related business purposes to the present day. (Graves Decl. at ¶¶ 9-10). For

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example, the email address [e-mail] is listed as Yanuaria’s contact email address in

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a recent posting to a thread discussing TweetAttacks on an online message board for Internet

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marketers. See Warrior Forum, http://www.warriorforum.com/warrior-forum-classified-

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ads/557956-valid-tweetattacks-discount-coupon-get-20-off.html (last visited June 5, 2012).

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On the first occasion when Plaintiff attempted service by mail, neither Foreign Defendant

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returned the receipt submitted with the respective mailing. (Graves Decl. at ¶ 11). Following the

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second attempted service by mail, on June 1, 2012, Plaintiff received a signed return receipt,

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attached as Exhibit A, for the mailing sent to Yanuaria. (Graves Decl. at ¶ 12; Ex. A). The

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signature, dated May 21, 2012, is neither Yanuaria’s name nor his spouse’s, but rather appears to

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be “Mary Sharpe,” followed by an illegible second surname. (Graves Decl. at ¶ 13; Ex. A).

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Plaintiff has no information linking Yanuaria to an individual by that name. (Graves Decl. at ¶

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14).

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With regard to JL4, Plaintiff has never received the return receipt submitted with the

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second mailing to JL4. (Graves Decl. at ¶ 15). The United States Postal Service (“USPS”)

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tracking records for the receipts submitted respectively with the two JL4 mailings, attached as
PLAINTIFF’S NOTICE OF MOTION AND
MOTION TO SERVE FOREIGN DEFENDANTS BY
ALTERNATIVE MEANS

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CASE NO. 3:12-CV-01721 SI

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Exhibit B, likewise show no tracking information for either of the mailings after they left the

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USPS sort facility in San Francisco. (Graves Decl. at ¶ 16; Ex. B). On May 15, 2012, Plaintiff

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initiated an inquiry with USPS regarding the disposition of the May 3, 2012 mailing, and was told

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by the responding USPS agent to expect around 60 days’ wait for the results of the inquiry.3

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(Graves Decl. at ¶ 17). The 60-day period would end on July 14, 2012, about three weeks before

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Plaintiff’s deadline to serve the Foreign Defendants. See FED. R. CIV. P. 4(m) (providing 120-day

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time limit for service).

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II.

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DISCUSSION

Plaintiff requests that the court allow Plaintiff to serve the Foreign Defendants via email

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pursuant to Federal Rule of Civil Procedure 4(f)(3). Plaintiff has made multiple good-faith

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attempts to serve the Foreign Defendants under Rule 4(f)(2)(C)(ii), to no avail. The method of

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service Plaintiff requests is not prohibited by international agreement; moreover, it is reasonably

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calculated to provide actual notice of the case to the Foreign Defendants.

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Rule 4(f)(3) allows the service of process on an individual at a place not within any

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judicial district of the United States by “means not prohibited by international agreement, as the

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court orders.” Fed. R. Civ. P. 4(f)(3). Court-ordered service under Rule 4(f)(3) enjoys an equal

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footing with service under Rule 4(f)(1) or 4(f)(2). Rio Properties, Inc., v. Rio Int’l Interlink, 284

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F.3d 1007, 1014, 1015 (9th Cir. 2002). A method of service ordered under Rule 4(f)(3) must not

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violate any international agreement. Further, it must comport with constitutional notions of due

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process, meaning it must be “reasonably calculated, under all the circumstances, to apprise

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interested parties of the pendency of the action and afford them an opportunity to present their

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objections.” Id. at 1015, 1016, 1017 (quoting Mullane v. Cent. Hanover Bank & Trust, 339 U.S.

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306, 314 (1950)).

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Service by email is both permissible and particularly suitable in this case. First, in both the
Ninth Circuit and this court, service by email has been found to comport with due process. Id. at

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For a description of the USPS inquiry process initiated by Plaintiff, see “920 Inquiries and
Claims,” http://pe.usps.com/text/imm/immc9_002.htm (last visited May 23, 2012).
PLAINTIFF’S NOTICE OF MOTION AND
MOTION TO SERVE FOREIGN DEFENDANTS BY
ALTERNATIVE MEANS

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CASE NO. 3:12-CV-01721 SI

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1017-18; see also Craigslist, Inc. v. Meyer, No. 09-CV-4739 SI, 2010 WL 2975938, at *2 (N.D.

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Cal. Jul. 26, 2010). In both Meyer and Rio Properties, the defendants conducted business entirely

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through the Internet. See Meyer, 2010 WL 2975938, at *2. For that reason, in Meyer, this court,

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relying on Rio Properties, allowed service by email on a defendant believed to reside in Thailand

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at an unknown physical address, concluding that email would give the defendant “sufficient notice

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and the opportunity to respond” to the complaint against him. Id.

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Likewise, here, Plaintiff alleges that until recently, the Foreign Defendants operated a

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website by which they promoted TweetAttacks, which is intended for use with Twitter’s online

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communications service, and that the Foreign Defendants continue to provide some online

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customer support for TweetAttacks. (ECF No. 1, ¶¶ 1, 5, 32-38). Accordingly, as in Meyer and

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Rio Properties, the Foreign Defendants have chosen to conduct their business through the Internet,

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making service by email particularly appropriate. And since Yanuaria is the principal of JL4 (id.,

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¶ 5), service by email on Yanuaria is reasonably calculated to provide notice to both Foreign

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Defendants.

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Moreover, the return receipt signed by an unknown individual suggests that the address at

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which Plaintiff has twice attempted service is no longer a valid address for service on Yanuaria.

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And even though Plaintiff sent its second mailings to JL4 and Yanuaria on the same date and

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subsequently received a return receipt for the mailing to Yanuaria, Plaintiff has never received a

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signed return receipt from JL4 (whether from an individual known or not known to be affiliated

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with JL4). This likewise suggests that the address Plaintiff used is no longer a valid address for

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service on JL4. Accordingly, further attempts at service at the same addresses, whether again by

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international registered mail or by alternate means such as a private courier service (e.g., Federal

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Express or DHL), would likely be unavailing. And Plaintiff has no information about any other

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physical addresses for either Yanuaria or JL4. By contrast, Yanuaria has recently used the email

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address associated with him, demonstrating that email sent to that address is likely to reach its

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intended recipient.

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Service by email is even more appropriate in this case because the return receipt Plaintiff
received is insufficient proof of valid service on Yanuaria, and the same would be true of any
PLAINTIFF’S NOTICE OF MOTION AND
MOTION TO SERVE FOREIGN DEFENDANTS BY
ALTERNATIVE MEANS

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CASE NO. 3:12-CV-01721 SI

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other mailings sent to the same physical address but signed by someone not known to be

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associated with Yanuaria. Service not within any judicial district of the United States made

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pursuant to Rule 4(f)(2) must be proved “by a receipt signed by the addressee, or by other

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evidence satisfying the court that the summons and complaint were delivered to the addressee.”

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FED. R. CIV. P. 4(l)(2)(B). The return receipt signed by an unknown individual is insufficient

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proof of valid service on Yanuaria. See Intelsat Corp. v. Multivision LLC, 736 F. Supp. 2d 1334,

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1341-42 (S.D. Fla. 2010) (finding foreign defendant was not properly served where the return

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receipts were signed by receptionists at his place of work, not by him). Although the summons

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and complaint may in fact have reached Yanuaria, Plaintiff cannot use this receipt to prove valid

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service absent any further information to that effect. See FED. R. CIV. P. 4(l)(3); Yao v. Crisnic

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Fund, SA, No. 10-CV-1299 AG (JCGx), 2011 WL 3818406, at *6 (C.D. Cal. Aug. 29, 2011)

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(return receipt signed by individual other than defendant was not satisfactory evidence that

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summons and complaint were delivered to defendant, and there was no evidence that the other

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individual passed the delivery along to defendant). Therefore, service by email is especially

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called-for in these circumstances.

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Finally, there is no authority that service by email is prohibited by international agreement,

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per the requirements of Rule 4(f)(3). The Philippines is not a signatory to the Hague Service

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Convention, so it does not apply.4 Meyer, 2010 WL 2975938, at *2 (citing Rio Properties, 284

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F.3d at 1016). And “service by email is not generally prohibited by international agreement.” Id.

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(citing Bank Julius Baer & Co. Ltd. v. Wikileaks, No. 08-CV-00824 JSW, 2008 WL 413737, at *2

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(N.D. Cal. Feb. 13, 2008); Williams-Sonoma Inc. v. Friendfinder Inc., No. 06-CV-06572 JSW,

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2007 WL 1140639, at *2 (N.D. Cal. Apr. 17, 2007)).

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In sum, email is an appropriate method of service for both Foreign Defendants. In light of

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Plaintiff’s multiple unsuccessful attempts to serve the Foreign Defendants by mail at the only

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physical addresses Plaintiff has for them, as well as the fact that the Foreign Defendants have

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See Hague Conf. on Private Int’l Law, Status Table 14,
http://www.hcch.net/index_en.php?act=conventions.status&cid=17 (last visited May 31, 2012)
(listing convention signatories).
PLAINTIFF’S NOTICE OF MOTION AND
MOTION TO SERVE FOREIGN DEFENDANTS BY
ALTERNATIVE MEANS

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CASE NO. 3:12-CV-01721 SI

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chosen to conduct business through the Internet, “service by email appears to be not only

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reasonably calculated to provide actual notice to the Foreign Defendants but the method most

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likely to apprise the Foreign Defendants of the action.” Facebook, Inc. v. Banana Ads, LLC, No.

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11-CV-3619 YGR, 2012 WL 1038752, at *2 (Mar. 27, 2012) (approving service by email on

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defendants in several foreign countries). Moreover, because email is nearly instantaneous, it is not

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subject to the vagaries of international mail service, whether by government service or private

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courier. Service by email thus will ensure both prompt notice to the Foreign Defendants and

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timeliness of service by Plaintiff within the period prescribed by Rule 4(m), thereby promoting

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judicial economy through more efficient prosecution of the case. Accordingly, Plaintiff requests

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that the court order Plaintiff to serve the Foreign Defendants by email under Rule 4(f)(3).

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III.

CONCLUSION

For the reasons described above, Plaintiff hereby respectfully requests that the Court grant
Plaintiff’s motion and enter an order to serve defendants Yanuaria and JL4 by email.

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Dated: June 6, 2012

Respectfully submitted,

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/s Charles T. Graves
David H. Kramer
Charles T. Graves
Riana S. Pfefferkorn
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Plaintiff Twitter, Inc.

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PLAINTIFF’S NOTICE OF MOTION AND
MOTION TO SERVE FOREIGN DEFENDANTS BY
ALTERNATIVE MEANS

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CASE NO. 3:12-CV-01721 SI