ADT Security Services, Inc. v. Security One International, Inc. et al

Filing 108

Order by Hon. Yvonne Gonzalez Rogers Granting 101 Motion to Serve Defendants by Email. (ygrlc3, COURT STAFF) (Filed on 8/17/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ADT SECURITY SERVICES, INC.,

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Plaintiff,

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v.

Northern District of California

ORDER GRANTING MOTION OF PLAINTIFF TO
SERVE DEFENDANTS SCELLUSALEADS AND
PURE CLAR ELECTRONICALLY

SECURITY ONE INT’L, INC., CLAUDIO HAND,
SCELLUSALEADS AND PURE CLAR,
Defendants.

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United States District Court

Case No.: 11-CV-05149 YGR

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Plaintiff ADT Security Services, Inc. (“ADT”) has sued Security One International, Inc.

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(“Security One”), Claudio Hand, Scellusaleads and Pure Clar (“Clar”) for unfair and deceptive

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business practices. ADT’s eleven count Second Amended Complaint, filed on May 10, 2012, alleges

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Unfair Competition and False Advertising under the Lanham Act (Counts I through III); and

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California state law claims for business torts (Counts IV through XI). According to ADT, despite its

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best efforts, it has been unable to locate either Pure Clar or Scellusaleads for service of process.

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ADT has filed a Motion to Authorize Alternative Methods of Service of Process, specifically

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email, on the grounds that service by email will provide actual notice of this case and that service by

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email is not prohibited by international agreement.
Having carefully considered the papers submitted and the record in this action, and for the

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reasons set forth below, the Court hereby GRANTS the Motion to Authorize Alternative Methods of

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Service of Process.1

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Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds that this
motion is appropriate for decision without oral argument. Accordingly, the Court VACATES the hearing set for
August 21, 2012.

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I.

BACKG
GROUND
This is an action for unfair comp
a
petition betw
ween provide of home alarm and se
ers
ecurity

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serv
vices. Dkt. No. 79, Seco Amended Complaint (“SAC”), ¶ 10-16. AD alleges th Security
N
ond
d
t
¶¶
DT
hat

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One has engaged in a campa
e
aign of fraud and deceit in order to s
d
steal its custo
omers. See g
generally, id
d.

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¶¶ 40-117. Scel
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llusaleads is a telemarke
eting compan based in t Philippin that alleg
ny
the
nes
gedly genera
ates

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sales leads for Security One Id. ¶¶ 3, 121. Pure Cla is Scellusa
S
e.
ar
aleads’ owne
er/operator. Id. ¶¶ 5, 122.
ADT alleges that on a weekly ba
asis, Security One hires a varying nu
y
umber of Sce
ellusaleads’

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curr
rently with ADT. Id. ¶ 124. The Sce
A
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ellusaleads’ agents maki these cal allegedly misrepresen
ing
lls
nt

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that Security On is affiliate with ADT Id. ¶¶ 60, 130. Based on this repr
ne
ed
T.
d
resentation, customers of

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ADT agree to si with Sec
T
ign
curity One, believing tha they are sti going to r
b
at
ill
receive ADT services. Id.
T
I

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Northern District of California

agen to make sales calls to prospective customers in the Unite States, inc
nts
s
o
e
ed
cluding custo
omers

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United States District Court

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¶¶ 129-131. All
legedly, the Scellusalead sales repr
ds’
resentatives then call AD posing a the custom
DT
as
mer

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and cancel the customer’s ADT account without th customer’ knowledge or consent. See id. ¶¶
c
A
ts
he
’s
e

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47-6
61.
s
ble
lusaleads or Clar for serv of proce
vice
ess. ADT’s
ADT has not been ab to locate either Scell

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Mot
tion to Autho
orize Alterna
ative Methods of Servic e of Process indicates th both Scel
s
hat
llusaleads an
nd

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Clar have active concealed their physi location For examp Scellusa
r
ely
d
ical
n.
ple,
aleads does n operate out
not
o

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of th physical addresses lis on its we
he
a
sted
ebsite, the P
Philippine go
overnment ha no record of
as
d

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Scel
llusaleads, th address to which Scel
he
o
llusaleads re
egistered its w
website is a UPS store in Utah that has
n
h

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no record of Sce
r
ellusaleads or Pure Clar opening a P.O. Box, and when Scellusaleads’ offices are
o
d

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reac
ched by phon employee refuse to give out a m
ne,
es
g
mailing addre
ess. ADT se
eeks permission to use

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ema to effect service on Sc
ail
s
cellusaleads and Clar pu
ursuant to Fe
ederal Rule o Civil Proc
of
cedure 4(f)(3).

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II.

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DISCUS
SSION
Federal Rule of Civi Procedure 4(h)(2) auth
R
il
horizes servi of proces on a foreig business
ice
ss
gn

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entit in the man
ty
nner prescrib by Rule 4(f) for indi
bed
ividuals. Fe R. Civ. P. 4(h)(2). Ru 4(f)(3)
ed.
ule

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perm service on individua in a foreign country a follows: “
mits
als
as
“Unless fede law prov
eral
vides

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othe
erwise, an in
ndividual . . . may be serv at a plac not within any judicia district of t United
ved
ce
n
al
the

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2

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

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Civ. P. 4(f)(3). It is left “to the sound discretion of the district court the task of determining when the

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particularities and necessities of a given case require alternate service of process under Rule 4(f)(3).”

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Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). The Ninth Circuit has

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approved service on foreign defendants by email pursuant to Rule 4(f)(3) where the defendants were

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either unreachable by other means or had no known physical address. Id. at 1017. To satisfy

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constitutional norms of due process, the alternative method of service must be “reasonably calculated,

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under all the circumstances, to apprise the interested parties of the action and afford them an

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opportunity to present their objections.” Id. at 1016. Thus, to establish that service by email is
notice” to the defendant; and (2) international agreement does not prohibit such service. Id. at 1014,

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Northern District of California

appropriate, a plaintiff must show: (1) that service by email is “reasonably calculated to provide actual

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United States District Court

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1016.

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1.

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Here, service by email is reasonably calculated to provide actual notice. ADT’s

Service by Email Is “Reasonably Calculated to Provide Actual Notice.”

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attempts to locate and contact Scellusaleads and Clar by postal mail and telephone have failed. ADT

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has demonstrated, however, that emails sent to [e-mail], the contact email address that

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is listed on Scellusaleads’ website, have not been returned as undeliverable.

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Based on the foregoing, under the circumstances, service by email appears to be not only

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reasonably calculated to provide actual notice to Scellusaleads and Clar, but the method most likely

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to apprise them of this action.

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2.

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ADT also has demonstrated that service via email is not prohibited by an international

International Agreement Does Not Prohibit Email Service.

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agreement. The Defendants are located in the Philippines. The Philippines is not a signatory to the

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Hague Convention on Service Abroad of Judicial and Extrajudicial Documents. 20 U.S.T. 361,

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T.I.A.S. No. 6638 (1969). See Hague Conf. on Private Int’l Law, available at

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http://www.hcch.net/index_en.php?act=states.details&sid=121, last visited Aug. 7, 2012. ADT cites

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a case in this District finding that service by email is not prohibited by international agreement in the

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1

Phil
lippines. Wi
illiams-Sono Inc. v. FriendFinder Inc., Case N C-06-06
r
No.
6572 JSW, 2
2007 WL
oma
F

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1140
0639, at *2 (N.D. Cal. Apr. 17, 2007
(
A
7).
Based on the foregoi the Cou concludes that ADT h demonstr
n
urt
s
has
rated that se
ervice on the
ing,

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Fore
eign Defendants via ema is not prohibited by in
nternational agreement.
ail

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III.

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CONCL
LUSION
For the reasons set forth above, the Court GR
r
fo
t
T’s
o
RANTS ADT Motion to Authorize Alternative

Met
thods of Serv of Proce
vice
ess.
Plaintiff ADT Secur Services, Inc. may se
f
der,
mmons, and t Second
the
rity
,
erve this Ord the Sum
ended Comp
plaint, as well as any oth documen in this cas on Defen
se,
ndants Scellu
usaleads and
Ame
her
nts

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Pure Clar by sen
e
nding an email message, return recei requested to scellusa
d,
ainc@gmail.
.com.
,
ipt

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Any retu of service that ADT files must in
urn
f
has
d,
nclude proof that ADT h attempted at a

Northern District of California

United States District Court

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minimum, to ve
erify actual re
eceipt of the email mess
e
sage.

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der
This Ord Terminat Docket Number 101.
tes
N
.

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IT IS SO ORDERED.

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Date _______________
ed: August 14, 2012
__

___________
__________
___________
_
_
__________
VONNE GONZ
ZALEZ ROGE
ERS
YV
UNITED STATES DIST
RT
TRICT COUR JUDGE

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