Goes International, AB v. Dodur Ltd. et al
Filing
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ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO SERVE DEFENDANTS LI ZHE AND ZHOU MING BY EMAIL. Signed by Magistrate Judge Laurel Beeler on 4/16/2015.(lblc2, COURT STAFF) (Filed on 4/16/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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San Francisco Division
United States District Court
Northern District of California
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GOES INTERNATIONAL, AB,
a corporation,
Plaintiff,
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v.
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DODUR LTD. et al.,
ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO SERVE
DEFENDANTS LI ZHE AND ZHOU
MING BY EMAIL
[Re ECF No. 11]
Defendants.
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No. 14-CV-5666 LB
INTRODUCTION
On December 30, 2014, Plaintiff Goes International, AB (“Goes Intl.”) filed a complaint
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against Defendants Dodur Ltd., a Chinese game development company, and its former employees
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Li Zhe and Zhou Ming for copyright infringement under 17 U.S.C. §§ 106 et seq and 501.
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(Complaint, ECF No. 11.) Plaintiff now moves for leave to serve Defendants Li Zhe and Zhou
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Ming by email. (Motion, ECF No. 11.) Pursuant to Civil Local Rule 7-1(b), the court finds this
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matter suitable for determination without oral argument and vacates the May 7, 2015 hearing date.
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Upon consideration of Goes Intl.’s motion, the declarations and evidence filed in support of it, and
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Record citations are to documents in the Electronic Case File (“ECF”); pinpoint citations
are to the ECF-generated page numbers at the top of the documents.
C-12-01317-LB
ORDER
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the applicable authority, the court GRANTS the motion and allows Goes Intl. to serve Li Zhe and
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Zhou Ming by email.
STATEMENT
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I. GOES INTL.’S ALLEGATIONS
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Plaintiff Goes Intl. is a Swedish company and designer of the video game Bubble Bust!, for
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which it holds two copyrights. (Complaint, ECF No. 1 ¶¶ 1, 2, 5, 7, 8.) Bubble Bust! has been
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distributed in the United States through Google Play and the Apple App Store since at least
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January, 2011. (Id. ¶¶ 2, 9.) In January, 2012, Puzzle Bubble Free! was made available via
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multiple websites including the Apple App Store, which listed the game’s developer as Defendant
Dodur Ltd. (Id. ¶ 11.) In March, 2012, another game, Puzzle Bubble Sea, was also made
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United States District Court
Northern District of California
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available via the multiple websites, again including the Apple App Store. (Id. ¶ 12.) The App
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Store listed Defendant Li Zhe as the game’s developer, though this listing was later changed to
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identify Defendant Zhou Ming as the developer. (Id. ¶ 12.)
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Goes Intl. contends that both games are copied almost entirely from its own copyrighted
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Bubble Bust! (Id. ¶¶ 11, 12.) Goes Intl. asserts that it was able to have the allegedly infringing
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games removed from the Apple App Store, but that the games remain available on other sites. (Id.
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¶ 18.) Goes Intl. further asserts that by publishing and selling these games, Defendants have
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“engaged in unfair trade practices and unfair competition against Plaintiff to Plaintiff’s irreparable
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damage,” and that “have reaped millions of dollars in profits” through its infringement of Goes
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Intl.’s copyright. (Id. ¶ 16, 17, 20.)
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II. PROCEDURAL HISTORY
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On December 30, 2014, Goes Intl. filed a complaint against Dodur Litd., Li Zhe, and Zhou
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Ming for copyright infringement. (See Id.) Goes Intl. had the Summons, Complaint, and Order of
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the Court translated into Mandarin Chinese and, on January 21, 2015, sent these documents to the
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contact information it had for each Defendant. (Motion, ECF No. 11 at 3.) Goes Intl. therein
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asked that Defendants agree to accept service via mail or email. (Id. at 4.) Defendant Li Zhe
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responded by email and stated that he had quit from Dodur as of 2013, but did not mention
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14-CV-1821 LB
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anything about any potential acceptance of service. (Id.)
On February 10, 2015, Goes Intl. again asked that Defendants accept service via email. (Id.)
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Li Zhe responded by email that Defendants would only accept service by mail, pursuant to the
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Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
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Commercial Matters (“Hague Convention”). (Id.) On February 27, 2015, Goes Intl. asked that
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the defendants provide their physical addresses for service. (Id.) Li Zhe responded by email, but
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did not provide his physical address. (Id.) On March 9, 2015, Goes Intl. again asked that
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Defendants provide their physical addresses. (Id.) Li Zhe again responded by email, but again did
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not provide his physical address. (Id.)
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On March 19, 2015, and again on March 27, 2015, counsel for Goes Intl. spoke to the COO of
United States District Court
Northern District of California
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Dodur, who explained that Li Zhe and Zhou Ming no longer work for Dodur. (Id.) The Dodur
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COO also stated that he did not have the physical addresses for Li Zhe or Zhou Ming, but he did
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provide an email address for Zhou Ming. (Id. at 5.)
ANALYSIS
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I. LEGAL STANDARD
In its motion, Goes Intl. asks the court to permit it to serve Li Zhe and Zhou Ming, who appear
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to be located in China, by e-mail. Federal Rule of Civil Procedure 4(f) authorizes service of
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process on an individual in a foreign country in the following ways:
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(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;
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(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
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of service of process by e-mail). While Rule 4(f)(3) gives the court discretion to “craft alternate
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means of service,” such means still must comport with constitutional notions of due process. Id.
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at 1016. “To meet this requirement, the method of service crafted by the district court must be
‘reasonably calculated under all the circumstances, to apprise interested parties of the pendency of
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Northern District of California
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the action and afford them an opportunity to present their objections.’” Id. at 1016-17 (quoting
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Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (Jackson, J.)).
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Thus, for plaintiffs to establish that service of process by email is appropriate, they must show
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that (1) international agreement does not prohibit service by email; and (2) service by email is
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reasonably calculated to provide actual notice to the defendant. See D.Light Design, Inc. v. Boxin
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Solar Co., No. C-13-5988 EMC, 2015 WL 526835, at *1 (N.D. Cal. Feb. 6, 2015); ADT Sec.
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Services, Inc. v. Security One Intern., Inc., No. 11 CV 05149 YGR, 2012 WL 3580670, at *3
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(N.D. Cal. 2012); Facebook, Inc. v. Banana Ads, LLC, No. C 11 3619 YGR, 2012 WL 1038752,
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at *2 (N.D. Cal. 2012); In re LDK Solar Securities Litigation, No. C 07 05182 WHA, 2008 WL
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2415186, at *4 (N.D. Cal. 2008).
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II. APPLICATION
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Regarding the requirement that service by email not be prohibited by international agreement,
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Li Zhe and Zhou Ming appear to be located in China, which is a party to the Hague Convention,
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Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. Nonetheless, because their physical addresses
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are unknown, the Hague Convention does not apply. Art. 1, 20 U.S.T. 361, 658 U.N.T.S. 163; see
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also Liberty Media Holdings, LLC. v. Sheng Gan, No. 11 CV 02754 MSK KMT, 2012 WL
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122862, at *3 (D. Colo. 2012) (holding that the Hague Convention does not apply to defendant
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who lived in China and whose address was unknown); United States v. Distribuidora Batiz CGH,
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S.A. De C.V., No. 07cv370–WQH–JMA, 2011 WL 1561086, at *5 (S.D. Cal. 2011). Given the
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inapplicability of the Hague Convention, the court is unaware of any international agreement that
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would prohibit Goes Intl. from serving Li Zhe and Zhou Ming via email.
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As for the due process requirement, service by is reasonably calculated to provide actual notice
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to the Defendants. Goes Intl. has had frequent correspondence with Li Zhe through the
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dev.deer@gmail.com and livhe_julien@hotmail.com email addresses. It is thus reasonably likely
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that service via these email addresses will provide Li Zhe with notice of this action and an
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opportunity to present any objections to the court.
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This issue is more difficult with regards to Zhou Ming, however, who has not responded to
United States District Court
Northern District of California
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any emails sent to the email address (19889676@qq.com) provided by Dodur Ltd., his former
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employer. Initially, the court notes that Goes Intl. sent test emails to this address and did not
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receive any notification that the emails were not delivered. (Motion, ECF No. 11 at 6.); see also
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D.Light Design, Inc., 2015 WL 526835, at *3 (finding service by email appropriate in part because
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“Plaintiffs’ email . . . was delivered successfully and did not bounce back as undeliverable.”).
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This provides at least some minimal assurance that the email address is legitimate. Additionally,
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the court is uncertain what more Goes Intl. could do to provide him notice of these proceedings.
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Given the circumstances, service by email to the address provided by a former employer is
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reasonably calculated to provide the requisite notice.
CONCLUSION
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For the foregoing reasons, the court GRANTS Goes Intl.’s motion.
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This disposes of ECF No. 11.
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IT IS SO ORDERED.
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Dated: April 16, 2015
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________________________
LAUREL BEELER
United States Magistrate Judge
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