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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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
TOM KUENEMAN,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiff,

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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.
_____________________________________/

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Plaintiff Tom Kueneman filed this copyright infringement action on February 6, 2014 naming

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Davy Vandeputte, John Doe 1 a/k/a Batrastart Panthat, and John Doe 2 a/k/a Shane Neilson, as

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Defendants. See Complaint, ECF No. 1.1 Mr. Kueneman develops “skill-based games” for use in

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Second Life, an “online virtual world” hosted by Linden Research, Inc. d/b/a Linden Lab. Id. ¶¶ 12,

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16. Mr. Kueneman licenses and distributes these games in exchange for “Linden Dollars,” a virtual

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currency that can be exchanged for U.S. dollars. Id. ¶ 16. Mr. Kueneman owns copyrights in a

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game called Enchanted. Id. ¶ 17. He alleges that Defendants are infringing his copyrights by

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“copying, selling, publicly performing and publicly displaying” games that are substantially similar

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and/or unauthorized derivative works based upon Enchanted. Id. ¶¶ 19-20. He asserts claims for

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page number at the top of the document.
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ORDER

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copyright infringement and violations of South Carolina’s Unfair Trade Practices Act, S.C. Code §§

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39-5-10, et seq. Id. ¶¶ 30-55.

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Prior to filing suit and pursuant to 17 U.S.C. § 512(c)(3), Mr. Kueneman served a Digital

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Millennium Copyright Act (“DMCA”) Notification relating to Defendants. Id. ¶ 25, Ex. C; see

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Motion for Alternate Service of Process, ECF No. 11 at 2. Mr. Vandeputte responded with a DMCA

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Counter-Notification. See Complaint, ECF No. 1, Ex. A. In the DMCA Counter-Notification, Mr.

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Vandeputte provided contact information, including a mailing address, telephone number, and email

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address. Id. He also stated “I hereby consent to the jurisdiction of the Federal District Court for the

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San Francisco, California judicial district. . . . I agree to accept service of process from the

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On May 1, 2014, Mr. Kueneman filed an ex parte Motion for Alternate Service of Process.

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For the Northern District of California

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complainant.” Id.

See Motion, ECF No. 11. In an attached declaration, Mr. Kueneman’s counsel stated that she

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provided a copy of the Complaint to Linden Lab. See Humphries Decl., ECF No. 11-1, ¶ 6. Linden

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Lab later said it had forwarded the Complaint to Mr. Vandeputte. Id. Mr. Vandeputte later

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contacted Mr. Kueneman’s counsel from the email address [e-mail] and

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expressed a desire to resolve the matter out of court. Id. ¶ 7. The Complaint, and all of counsel’s

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communications with Mr. Vandeputte, were in English. Id. ¶ 6.

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In the pending Motion, Mr. Kueneman seeks leave to serve Mr. Vandeputte by email. Id.

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Alternatively, Mr. Kueneman asks the court to authorize service by international certified mail

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addressed by the clerk. Id.

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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:

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(A) as prescribed by the foreign country's law for service in that country in an action in
its courts of general jurisdiction;

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(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

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(C) unless prohibited by the foreign country's law, by:

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(i) delivering a copy of the summons and of the complaint to the individual
personally; or

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(ii) using any form of mail that the clerk addresses and sends to the individual and
that requires a signed receipt; or

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(3) by other means not prohibited by international agreement, as the court orders.

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“As obvious from its plain language, service under Rule 4(f)(3) must be (1) directed by the court;

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and (2) not prohibited by international agreement. No other limitations are evident from the text.”

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Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002) (affirming propriety of

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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

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of service,” such means still must comport with constitutional notions of due process. Id. at 1016.

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calculated under all the circumstances, to apprise interested parties of the pendency of the action and

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afford them an opportunity to present their objections.’” Id. at 1016-17 (quoting Mullane v. Cent.

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Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (Jackson, J.)).

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Here, Mr. Kueneman proposes serving Mr. Vandeputte at both email addresses provided:

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[e-mail] and [e-mail]. Id.; see Proposed Order, ECF No. 11-

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2 (indicating request is to serve at both addresses). Mr. Vandeputte already has actual notice of the

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Complaint and has responded in English. Accordingly, the court finds that email service appears

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reasonably calculated to apprise him of the action and provide him an opportunity to present his

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objections, so as to satisfy due process. .

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Accordingly, the court ORDERS Mr. Kueneman to contact Mr. Vandeputte and informally ask

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whether he would be willing to waive service of process. If he agrees, counsel should follow the

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procedures in Rule 4(d). If he does not agree (or fails to timely respond), Mr. Kueneman should file

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a short renewed motion for alternate service along with a declaration providing an update. The court

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will look favorably upon such a renewed motion.

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This disposes of ECF No. 11.

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IT IS SO ORDERED.
Dated: May 16, 2014
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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C 14-00564 LB
ORDER

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