Assef et al v. Does 1-10

Filing 25

ORDER by Judge Maria-Elena James granting 24 Ex Parte Application to allow Plaintiffs to serve Doe Defendants via email and blogpost pursuant to Rule 4(f)(3). (cdnS, COURT STAFF) (Filed on 3/28/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NICHOLAS ASSEF, et al.,

Case No. 15-cv-01960-MEJ

Plaintiffs,
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ORDER GRANTING EX PARTE
APPLICATION FOR LEAVE TO
SERVE DOE DEFENDANTS BY EMAIL

v.
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DOES 1-10,

Re: Dkt. No. 24
Defendant.

United States District Court
Northern District of California

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INTRODUCTION

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Plaintiffs Nicholas Assef and Lincoln Crowne & Company (“Lincoln Crowne”)

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(collectively, “Plaintiffs”) bring this action against Does 1-10 (“Defendants”) for trademark

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infringement and defamation. Compl., Dkt. No. 1. Plaintiffs now move for leave to serve

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Defendants by email and by posting to a blog allegedly maintained by Defendants. Appl., Dkt.

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No. 24. The Court finds this matter suitable for disposition without oral argument. See Fed. R.

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Civ. P. 78(b); Civ. L.R. 7-1(b). Having considered Plaintiffs’ position, relevant legal authority,

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and the record in this case, the Court GRANTS Plaintiffs’ Ex Parte Application for the following

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reasons.

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BACKGROUND

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Lincoln Crowne is an investment bank that provides advice on corporate transactions and

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strategic engagements. Compl. ¶ 7. Assef is its founder and executive director. Id. ¶ 9. Lincoln

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Crowne owns the following trademarks (collectively, the “Lincoln Crowne Trademarks”): Lincoln

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Crowne & Company (USPTO Reg. No. 4107955); Lincoln Crowne & Company (Australian Reg.

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No. 1423961); Lincoln Crowne (Australian Reg. No. 1423960); lincolncrowne (Australian Reg.

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No. 142175). Id. ¶ 7. Additionally, Lincoln Crowne owns and has operated a website located at

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lincolncrowne.com. Id. ¶ 8.
Plaintiffs’ case concerns a blog located at www.lincolncrowne.blogspot.com (the “Blog”),

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which was posted in 2007. Id. ¶¶ 11, 14; Declaration of Emily F. Evitt (“Evitt Decl.”) ¶ 2, Dkt.

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No. 24-1. The Blog bears the heading, “Beware Lincoln Crowne & Company” and the

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subheading “Warning Warning Warning – Nick Assef.” Compl. ¶ 12 & Ex. A (copy of

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www.lincolncrowne.blogspot.com). The text of the Blog includes unsubstantiated personal

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attacks on Assef, as well as on his company. Id. (both). Defendants used Lincoln Crowne’s

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trademark as their Blogger username, and thus “LINCOLNCROWNE” appears both in the Blog’s

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URL and on the Blog itself under the heading “About Me.” Id. Defendants have no affiliation

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with Plaintiffs and had no authorization to use the Lincoln Crowne Trademarks. Compl. ¶¶ 12,

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United States District Court
Northern District of California

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14.

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Defendants originally posted the Blog on or about May 25, 2007. Id. ¶ 14. Plaintiffs

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allege Defendants are individuals who were upset about the performance of a private investment

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and posted false statements on the Blog in retaliation. Id. ¶ 13. When one types “Lincoln Crowne

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blogspot” or “Nicholas Assef blogspot” into the search engine Google, the Blog appears on the

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first page of search results. Evitt Decl. ¶ 3 & Ex. A (copies of search results). Plaintiffs allege the

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Blog has caused and is continuing to cause damage to their reputations, including the loss of

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clients, significant revenue, and their ability to recruit employees. Compl. ¶ 19; Evitt Decl. ¶ 4.

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Assef has submitted over 30 complaints to Google requesting removal of the Blog, but

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Google repeatedly refused to remove it. Compl. ¶ 14; Evitt Decl. ¶ 5 & Ex. B (copies of emails

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from Google to Assef). On or about January 7, 2014, Plaintiffs filed a defamation lawsuit against

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Google in the Supreme Court of New South Wales, Australia. Compl. ¶ 15. In response to the

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Australian lawsuit, on or about January 18, 2014, Google removed the Blog across all Blogger

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domains. Id. However, in or around September 2014, Plaintiffs discovered that Google had

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reinstated the Blog in the .com domain. Id. ¶ 16. Thus, although the Blog is no longer available at

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the Australia-specific URL www.lincolncrowne.blogspot.com/au, it is viewable at the primary

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URL www.lincolncrowne.blogspot.com. Id. Plaintiffs allege Google now refuses to take down

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the Blog without a U.S. court order. Id. ¶ 17.
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Plaintiffs filed this lawsuit on April 30, 2015 to seek redress for Defendants’ conduct. Id. ¶

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1. When Plaintiffs filed the Complaint, they were unaware of Defendants’ identities, and therefore

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sued them as Does 1-10. Plaintiffs have since attempted to determine who posted the anonymous

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Blog. Evitt Decl. ¶ 7. After filing the Complaint, Plaintiffs filed an ex parte application for leave

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to take limited immediate discovery to determine Defendants’ identities. Dkt. No. 8; Evitt Decl. ¶

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8. The Court granted, in part, Plaintiffs’ ex parte application and issued an order permitting them

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to serve a subpoena on Google “to obtain the Defendants’ names, addresses, telephone numbers,

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and email addresses, as well as documents sufficient to identify the IP addresses used to create,

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operate, and access the Blog . . . .” Dkt. No. 9. Plaintiffs served a subpoena on Google and in its
response, Google provided the Gmail email address used to register the Blog:

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United States District Court
Northern District of California

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[e-mail] (the “Gmail Address”). Dkt. No. 16; Evitt Decl. ¶ 8.

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As Google also operates Gmail, Plaintiffs filed a second ex parte application and sought

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leave from the Court to serve a second subpoena on Google. Dkt. No. 16. The Court granted

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Plaintiffs’ ex parte application on October 27, 2015 (Dkt. No. 17), and that same day Plaintiffs

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issued a subpoena to Google. Dkt. No. 18. In its response, Google disclosed a Yahoo email

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address—[e-mail] (the “Yahoo Address”)—for the user who created the Gmail Address

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that had been used to register the Blog. Evitt Decl. ¶ 9. Plaintiffs’ counsel subsequently emailed

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the Yahoo Address and the Gmail Address, asking if Defendants would accept service of the

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Complaint or contact Plaintiffs’ counsel to discuss the case. Evitt Decl. ¶ 10 & Ex. D (copy of

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email). However, Plaintiffs’ counsel received a bounce-back from the Yahoo Address stating the

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email address did not exist. Evitt Decl. ¶ 10 & Ex. E (copy of bounce-back notification).

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Plaintiffs’ counsel did not receive a bounce-back from the Gmail Address, but Defendants did not

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respond to Plaintiffs’ email. Evitt Decl. ¶ 10.

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Additionally, in its second subpoena response, Google provided the IP address used to

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create the Gmail Address (the “IP Address”). Id. ¶ 11. Plaintiffs’ counsel traced the IP address to

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Singapore. Id. & Ex. F (copy of IP Address lookup). Assef then researched the IP Address and

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traced it to a large public area in Singapore (circa 90 Bras Basah Road, Singapore), an area that

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features a number of food outlets that offer free wireless Internet. Id. ¶ 12 & Exs. G-I (copies of
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the IP Address Location Report created by Assef on the website ipaddresslocation.org, the map for

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the Esplanade MRT station that is available from the website streetdirectory.com, and a Google

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map for 90 Bras Basah Road, respectively). Based on the Singapore IP Address used by

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Defendants, as well as Plaintiffs’ own location in Australia, Plaintiffs have determined that

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Defendants are likely based outside the United States, in Singapore or Australia. Appl. at 4.
Plaintiffs bring this ex parte application seeking leave to serve Defendants by email and

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posting to the Blog, arguing that unless the Court grants this request, they will have no redress

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from the alleged infringing and defamatory speech that they have been trying to remove for nearly

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nine years. Appl. at 1. Although they have made efforts to identify and locate Defendants, they

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contend the only available means to contact them is by email because Defendants have actively

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United States District Court
Northern District of California

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concealed their identities. Id.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 4(f) sets forth methods for serving an individual in a

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foreign country, such as via the Hague Convention on the Service Abroad of Judicial and

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Extrajudicial Documents (“Hague Convention”), by means prescribed by the law of the foreign

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country, or by letters rogatory. Specifically, Rule 4(f)(3) states: “Unless federal law provides

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otherwise, an individual . . . may be served at a place not within any judicial district of the United

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States: . . (3) by other means not prohibited by international agreement, as the court orders.”1 A

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plaintiff need not attempt service by another method before seeking leave from the Court to serve

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defendant pursuant to Rule 4(f)(3); plaintiff must only “demonstrate that the facts and

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circumstances of the present case necessitate[] the district court’s intervention.” Rio Props., Inc.

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The other methods of service of an individual in a foreign country are: “(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: (A) as
prescribed by the foreign country’s law for service in that country in an action in its courts of
general jurisdiction; (B) as the foreign authority directs in response to a letter rogatory or letter of
request; or (C) unless prohibited by the foreign country’s law, by: (i) delivering a copy of the
summons and of the complaint to the individual personally; or (ii) using any form of mail that the
clerk addresses and sends to the individual and that requires a signed receipt.” Fed. R. Civ. P.
4(f).
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v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002) (affirming propriety of service of

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process by e-mail).

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

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

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text.” Id. at 1014. While Rule 4(f)(3) gives the court discretion to “craft alternate means of

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

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“To meet this requirement, the method of service crafted by the district court must be ‘reasonably

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

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

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Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)).

United States District Court
Northern District of California

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DISCUSSION

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The Court finds Plaintiffs have satisfied all of the requirements for alternative service

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under Rule 4(f)(3). First, based on their service efforts to date, Plaintiffs have learned that

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Defendants are likely based in either Singapore or Australia. The Gmail Address used to create

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the Blog was created from the IP Address in Singapore. Plaintiffs, in turn, are based in Australia,

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as are their customers; thus, there is also a chance that Defendants are in Australia. Even though

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Plaintiffs do not have Defendants’ precise location, a defendant’s location need not be known with

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certainty to authorize service under Rule 4(f)(3). Wilens v. Automattic Inc., 2015 WL 498745, at

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*5 (N.D. Cal. Feb. 5, 2015) (granting leave to serve anonymous Doe defendant by email where

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defendant “appear[ed] to be located in Russia”). Neither Singapore nor Australia is party to an

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international agreement prohibiting service by email. Australia is a member of the Hague

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Convention, which does not prohibit service by email. See Hague Conf. on Private Int’l Law,

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Status Table 14, http://www.hcch.net/index_en.php?act=conventions.status&cid=17 (last visited

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Mar. 28, 2016); Facebook, Inc. v. Banana Ads, LLC, 2012 WL 1038752, at *2 (N.D. Cal. Mar. 27,

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2012) (collecting cases). Singapore is not a member of the Hague Convention, but the Court is

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unaware of any international agreement prohibiting service by email there. See United States v.

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First Coast Meat & Seafood, 30 C.I.T. 1377, 1378 (2006) (noting that Singapore has not “acceded

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to the Hague Service Convention). Regardless, “because [Defendants] physical addresses are
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unknown, the Hague Convention does not apply.” Goes Int’l, AB v. Dodur Ltd., 2015 WL

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1743393, at *3 (N.D. Cal. Apr. 16, 2015) (citing Hague Service Convention Art. 1, 20 U.S.T. 361,

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658 U.N.T.S. 163; Liberty Media Holdings, LLC. v. Sheng Gan, 2012 WL 122862, at *3 (D. Colo.

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Jan. 17, 2012) (holding that the Hague Convention does not apply to defendant who lived in China

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and whose address was unknown); United States v. Distribuidora Batiz CGH, S.A. De C.V., 2011

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WL 1561086, at *5 (S.D. Cal. Apr. 21, 2011)).

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Second, Plaintiffs have taken diligent measures to determine Defendants’ identities.

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Plaintiffs served multiple subpoenas and traced the IP address at issue, but were unable to

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determine Defendants’ identities. Plaintiffs subpoenaed Google about the Blog page and obtained
the Gmail Address, after which they subpoenaed Google again for information about the Gmail

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United States District Court
Northern District of California

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Address and received the Yahoo Address and the IP Address. The Yahoo Address bounced back

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and the IP Address traced to a public area in Singapore. Thus, it appears Plaintiffs’ only means of

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contacting Defendants is via the Gmail Address. See Goes Int’l, 2015 WL 1743393, at *3

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(permitting service by email where plaintiff “sent test emails to this address and did not receive

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any notification that the emails were not delivered.”).

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Third, service via email to the Gmail Address and posting to the Blog is “reasonably

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

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and afford them an opportunity to present their objections.” Rio Props., 284 F.3d at 1016

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(citations and quotation omitted). As discussed above, email to the Gmail Address and posting to

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the Blog is Plaintiffs’ only available means of contacting Defendants. Such service is reasonably

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calculated to give notice under the circumstances because it appears Defendants may have actively

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concealed their identities. If Plaintiffs are not granted leave to serve the Complaint by email, they

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will have no means to proceed with this case.

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CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ Ex Parte Application. Plaintiffs

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shall serve the Summons and Complaint on Defendants by sending an email to the email address

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[e-mail] and by posting a link to the Summons and Complaint to the blog page

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located at www.lincolncrowne.blogspot.com. Plaintiffs shall file proof of service by these
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methods by April 25, 2016.
IT IS SO ORDERED.

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Dated: March 28, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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United States District Court
Northern District of California

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