Kueneman v. Vandeputte

Filing 14

ORDER PERMITTING SERVICE OF PROCESS AND MOTION VIA E-MAIL. Signed by Magistrate Judge Laurel Beeler on 5/16/2014.(lblc2, COURT STAFF) (Filed on 5/16/2014)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division TOM KUENEMAN, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 Plaintiff, 13 14 15 16 No. C 14-00564 LB v. DAVY VANDEPUTTE, JOHN DOE 1 a/k/a BATRASTART PANTHAT, and JOHN DOE 2 a/k/a SHANE NEILSON ORDER PERMITTING SERVICE OF PROCESS AND MOTION VIA EMAIL [Re: ECF No. 11] Defendants. _____________________________________/ 17 18 Plaintiff Tom Kueneman filed this copyright infringement action on February 6, 2014 naming 19 Davy Vandeputte, John Doe 1 a/k/a Batrastart Panthat, and John Doe 2 a/k/a Shane Neilson, as 20 Defendants. See Complaint, ECF No. 1.1 Mr. Kueneman develops “skill-based games” for use in 21 Second Life, an “online virtual world” hosted by Linden Research, Inc. d/b/a Linden Lab. Id. ¶¶ 12, 22 16. Mr. Kueneman licenses and distributes these games in exchange for “Linden Dollars,” a virtual 23 currency that can be exchanged for U.S. dollars. Id. ¶ 16. Mr. Kueneman owns copyrights in a 24 game called Enchanted. Id. ¶ 17. He alleges that Defendants are infringing his copyrights by 25 “copying, selling, publicly performing and publicly displaying” games that are substantially similar 26 and/or unauthorized derivative works based upon Enchanted. Id. ¶¶ 19-20. He asserts claims for 27 28 1 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page number at the top of the document. C 14-00564 LB ORDER 1 copyright infringement and violations of South Carolina’s Unfair Trade Practices Act, S.C. Code §§ 2 39-5-10, et seq. Id. ¶¶ 30-55. 3 Prior to filing suit and pursuant to 17 U.S.C. § 512(c)(3), Mr. Kueneman served a Digital 4 Millennium Copyright Act (“DMCA”) Notification relating to Defendants. Id. ¶ 25, Ex. C; see 5 Motion for Alternate Service of Process, ECF No. 11 at 2. Mr. Vandeputte responded with a DMCA 6 Counter-Notification. See Complaint, ECF No. 1, Ex. A. In the DMCA Counter-Notification, Mr. 7 Vandeputte provided contact information, including a mailing address, telephone number, and email 8 address. Id. He also stated “I hereby consent to the jurisdiction of the Federal District Court for the 9 San Francisco, California judicial district. . . . I agree to accept service of process from the 10 On May 1, 2014, Mr. Kueneman filed an ex parte Motion for Alternate Service of Process. 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 complainant.” Id. See Motion, ECF No. 11. In an attached declaration, Mr. Kueneman’s counsel stated that she 13 provided a copy of the Complaint to Linden Lab. See Humphries Decl., ECF No. 11-1, ¶ 6. Linden 14 Lab later said it had forwarded the Complaint to Mr. Vandeputte. Id. Mr. Vandeputte later 15 contacted Mr. Kueneman’s counsel from the email address sandra.showboat@gmail.com and 16 expressed a desire to resolve the matter out of court. Id. ¶ 7. The Complaint, and all of counsel’s 17 communications with Mr. Vandeputte, were in English. Id. ¶ 6. 18 In the pending Motion, Mr. Kueneman seeks leave to serve Mr. Vandeputte by email. Id. 19 Alternatively, Mr. Kueneman asks the court to authorize service by international certified mail 20 addressed by the clerk. Id. 21 22 23 24 25 Federal Rule of Civil Procedure 4(f) authorizes service of process on an individual in a foreign country in the following ways: (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: 26 27 (A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction; 28 (B) as the foreign authority directs in response to a letter rogatory or letter of request; or C 14-00564 LB ORDER 2 1 (C) unless prohibited by the foreign country's law, by: 2 (i) delivering a copy of the summons and of the complaint to the individual personally; or 3 (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or 4 5 (3) by other means not prohibited by international agreement, as the court orders. 6 “As obvious from its plain language, service under Rule 4(f)(3) must be (1) directed by the court; 7 and (2) not prohibited by international agreement. No other limitations are evident from the text.” 8 Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002) (affirming propriety of 9 service of process by e-mail). While Rule 4(f)(3) gives the court discretion to “craft alternate means “To meet this requirement, the method of service crafted by the district court must be ‘reasonably 12 For the Northern District of California of service,” such means still must comport with constitutional notions of due process. Id. at 1016. 11 UNITED STATES DISTRICT COURT 10 calculated under all the circumstances, to apprise interested parties of the pendency of the action and 13 afford them an opportunity to present their objections.’” Id. at 1016-17 (quoting Mullane v. Cent. 14 Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (Jackson, J.)). 15 Here, Mr. Kueneman proposes serving Mr. Vandeputte at both email addresses provided: 16 dbandeputte1@gmail.com and sandra.showboat@gmail.com. Id.; see Proposed Order, ECF No. 11- 17 2 (indicating request is to serve at both addresses). Mr. Vandeputte already has actual notice of the 18 Complaint and has responded in English. Accordingly, the court finds that email service appears 19 reasonably calculated to apprise him of the action and provide him an opportunity to present his 20 objections, so as to satisfy due process. . 21 Accordingly, the court ORDERS Mr. Kueneman to contact Mr. Vandeputte and informally ask 22 whether he would be willing to waive service of process. If he agrees, counsel should follow the 23 procedures in Rule 4(d). If he does not agree (or fails to timely respond), Mr. Kueneman should file 24 a short renewed motion for alternate service along with a declaration providing an update. The court 25 will look favorably upon such a renewed motion. 26 This disposes of ECF No. 11. 27 28 C 14-00564 LB ORDER 3 1 2 IT IS SO ORDERED. Dated: May 16, 2014 _______________________________ LAUREL BEELER United States Magistrate Judge 3 4 5 6 7 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 14-00564 LB ORDER 4

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