The Pokemon Company International, Inc. v. Shopify, Inc.

Filing 11

ORDER by Judge Kandis A. Westmore denying 1 Motion to Compel. (kawlc2, COURT STAFF) (Filed on 2/22/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THE POKEMON COMPANY INTERNATIONAL, INC., Petitioner, 8 ORDER DENYING MOTION TO COMPEL 9 v. 10 SHOPIFY, INC., 11 United States District Court Northern District of California Case No. 16-mc-80272-KAW Re: Dkt. No. 1 Respondent. 12 13 On December 30, 2016, Petitioner The Pokémon Company International, Inc. ("Pokémon") 14 filed a motion to compel compliance with a subpoena issued against Respondent Shopify, Inc. 15 ("Shopify") (Pet.'s Mot., Dkt. No. 1.) The subpoena was issued in connection with The Pokémon 16 Company International, Inc. v. Tee Turtle LLC, Case No. 2:15-cv-1419-RSL, a copyright 17 infringement case currently pending in the Western District of Washington. (See Heilman Decl., 18 Exh. B., Dkt. No. 3.) The Court deems the matter suitable for disposition without hearing 19 pursuant to Civil Local Rule 7-1(b). Having considered the papers filed by the parties and the 20 relevant legal authority, the Court DENIES the motion to compel, for the reasons set forth below. 21 I. BACKGROUND 22 Pokémon manufactures, markets, and distributes children's entertainment products based 23 on characters such as Pikachu, Pokémon's principal mascot. (Heilman Decl., Exh. A, Tee Turtle 24 Compl. ¶¶ 6, 14.) Tee Turtle is a St. Louis, Missouri-based online apparel retailer featuring 25 designs derived from various anime, gaming, and pop culture properties. (Tee Turtle Compl. ¶ 26 21.) Tee Turtle's designs have incorporated various Pokémon characters, including Pikachu, 27 Charmander, Eevee, Mew, Squirtle, Vulpix, and Bulbasaur. (Tee Turtle Compl., Exh. B.) In 28 September 2015, Pokémon brought a copyright infringement suit against Tee Turtle for copyright 1 infringement based on Tee Turtle's use of the Pokémon characters in its designs. (Heilman Decl. ¶ 2 3.) Shopify is a "cloud-based, multi-channel commerce platform" used by merchants to 3 design, set-up, and manage stores. (Zipes Decl. ¶ 1, Dkt. No. 7.) Pokémon believes that Tee 5 Turtle uses Shopify's services for its online sales. (Heilman Decl. ¶ 4.) Shopify is a Canadian 6 corporation, and its principal place of business is in Ottawa, Canada. (Zipes Decl. ¶ 3.) While 7 Shopify lists a San Francisco office on its website, Shopify asserts that the San Francisco office is 8 the principal place of business for Shopify's wholly-owned U.S. subsidiary, Shopify (USA) Inc. 9 (Zipes Decl. ¶ 4; Heilman Decl. ¶ 5, Exh. C.) Shopify further states that only one employee at 10 Shopify (USA) Inc. works on Shopify's e-commerce business, while the remaining employees 11 United States District Court Northern District of California 4 work on a mobile and messaging platform to help merchants run their businesses. (Zipes Decl. ¶ 12 5.) 13 On September 6, 2016, Pokémon served a subpoena on Shopify at the then-current San 14 Francisco address. (Heilman Decl. ¶ 5, Exh. D.) The subpoena was served on "Jason Baker," who 15 allegedly represented that he was authorized to accept service . (Heilman Decl., Exh. D.) Shopify 16 asserts that neither Shopify nor Shopify (USA) Inc. has an employee named "Jason Baker," 17 although Shopify (USA) Inc. does have an employee named "Josh Baker." (Zipes Decl. ¶ 6.) Josh 18 Baker is a front-end developer, and he is not an officer, manager, or general agent of either 19 Shopify or Shopify (USA) Inc., and lacks authority to accept service of process for Shopify. 20 (Zipes Decl. ¶ 6.) 21 After Shopify failed to respond to the subpoena, Pokémon's counsel, Mr. Garrett Heilman, 22 contacted Shopify via a phone number on Shopify's website. (Heilman Decl. ¶ 8.) Mr. Heilman 23 spoke with Freya Bauer, who informed him that Shopify did not have a legal team in the United 24 States, and directed counsel to e-mail (Heilman Decl. ¶ 8.) On November 3, 25 2016, Mr. Heilman e-mailed Shopify at the provided address, identifying the subpoena and 26 attaching the proof of service. (Heilman Decl. ¶ 9, Exh. F.) 27 28 On November 4, 2016, Shopify's counsel, Erin Zipes, responded, stating that the November 3, 2016 e-mail was the first time Shopify had seen the subpoena. (Heilman Decl., Exh. 2 1 G.) Ms. Zipes explained that Shopify was a Canadian corporation, and that it was subject to 2 Canadian privacy laws. Ms. Zipes also noted that enforcement of the subpoena "is contingent 3 upon authorization by the Court of territorial jurisdiction," and that it could not comply with the 4 subpoena "absent due process," although Shopify was willing "to comply with any properly issued 5 court order or subpoena . . . ." (Heilman Decl., Exh. G.) 6 On November 8, 2016, Mr. Heilman responded, noting Shopify's privacy concerns. Mr. 7 Heilman cited to the Federal Rules of Civil Procedure, and explained that Shopify had "subjected 8 itself to the personal jurisdiction of U.S. courts in California by conducting business there, directly 9 and/or through its U.S. affiliates, and registering agents there." (Heilman Decl., Exh. H.) 10 On November 14, 2016, Ms. Zipes informed Mr. Heilman that Shopify would comply with United States District Court Northern District of California 11 any properly issued subpoena, but that if Pokémon "did not wish to have [its] subpoena issued by 12 a court of competent jurisdiction in Canada then at this time [Shopify was] unable to respond to 13 [Pokémon's] subpoena." (Heilman Decl., Exh. I.) Ms. Zipes also stated that if Shopify could 14 comply with the subpoena without breaching privacy obligations to its merchants, it would do so. 15 After further discussions by e-mail and phone, on December 6, 2016, Ms. Zipes explained 16 that Shopify would not respond to the subpoena because the subpoena was not properly served, as 17 the San Francisco address belonged to Shopify (USA) Inc. (Heilman Decl., Exh. N.) Further, Ms. 18 Zipes stated that there was no Jason Baker who worked there, and that Shopify (USA) Inc. was not 19 the owner or custodian of the information Pokémon was seeking. Finally, Ms. Zipes noted that 20 Shopify did have an agent for service of process in the United States, and that it could not 21 otherwise comply with the improperly served subpoena. 22 On December 30, 2016, Pokémon filed the instant motion to compel. (Dkt. No. 1.) On 23 January 13, 2017, Shopify filed its opposition, arguing that Pokémon's motion should be denied 24 because: (1) the Court lacks personal jurisdiction over Shopify, (2) Pokémon failed to properly 25 serve Shopify or Shopify (USA) Inc., and (3) assuming Pokémon properly served Shopify (USA) 26 Inc., Shopify (USA) Inc. lacks possession control of the subpoenaed records. (Resp.'s Opp'n at 1- 27 2, Dkt. No. 6.) On January 20, 2017, Pokémon filed its reply. (Pet.'s Reply, Dkt. No. 8.) 28 3 II. 1 LEGAL STANDARD Federal Rule of Civil Procedure 45 governs discovery propounded by subpoena. The 2 3 4 5 6 subpoena must state the place where compliance is required, which must be within 100 miles of where the subpoenaed party resides, is employed, or regularly transacts business in person. Fed. R. Civ. P. 45(a)(1)(A)(iii). Rule 45 requires that a subpoena be issued by the court where the underlying action is pending, but that challenges to the subpoena are to be heard by the district court where compliance with the subpoena is required. Fed. R. Civ. P. 45(a)(2), (d)(3)(A). 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 III. A. DISCUSSION Jurisdiction First, the Court finds that Pokémon's motion to compel must be denied because it lacks jurisdiction over Shopify. "Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons." Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014). California's long-arm statute permits the exercise of personal jurisdiction to the full extent allowed under the United States constitution. Id. "For the exercise of personal jurisdiction over a defendant, due process requires that the defendant 'have certain minimum contacts' with the forum state 'such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015). Personal jurisdiction can be either "general" or "specific." See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984). With respect to corporations, general jurisdiction exists where the corporations' "affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum state." Daimler, 134 S. Ct. at 754 (internal quotation omitted). In other words, the corporations "continuous corporate operations within a state are so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities." Id. (internal quotation omitted). By contrast, specific jurisdiction exists where the case "arises out of or relates to the defendant's contacts with the forum." Ranza, 793 F.3d at 1068 (internal quotation omitted). i. General Jurisdiction 28 4 1 First, the parties dispute whether there is general jurisdiction over Shopify in California, as 2 Shopify is a Canadian corporation with its principal place of business in Ottawa, Canada. (See 3 Zipes Decl. ¶ 3.) Pokémon does not assert that there is general jurisdiction over Shopify based on 4 Shopify's contacts with California; instead, Pokémon argues that the contacts of Shopify (USA) 5 Inc. should be imputed to Shopify, its parent company. (Pet.'s Reply at 2.) The parties do not 6 dispute that the Court would have general jurisdiction over Shopify (USA) Inc.; indeed, Shopify 7 admits that Shopify (USA) Inc.'s principal place of business is in San Francisco, California. 8 (Zipes Decl. ¶ 4.) Thus, at issue is whether Shopify (USA) Inc.'s contacts may be imputed to 9 Shopify. 10 In general, "[t]he existence of a parent-subsidiary relationship is insufficient, on its own, to United States District Court Northern District of California 11 justify imputing one entity's contacts with a forum state to another for the purpose of establishing 12 personal jurisdiction." Ranza, 793 F.3d at 1070. This is because "'[a] basic tenet of American 13 corporate law is that the corporation and its shareholders are distinct entities." Id. (quoting Dole 14 Food Co. v. Patrickson, 538 U.S. 468, 474 (2003)). The courts recognize, however, that "the veil 15 separating affiliated corporations may . . . be pierced to exercise personal jurisdiction over a 16 foreign defendant in certain limited circumstances." Id. at 1071. 17 The Ninth Circuit previously permitted a plaintiff to pierce the corporate veil for 18 jurisdictional purposes under two separate tests: an "agency" test and an "alter ego" test. Id. 19 Under the agency test, a plaintiff had to show that the subsidiary "performed services that were 20 sufficiently important to the foreign corporation that if it did not have a representative to perform 21 them, the corporation's own officials would undertake to perform substantially similar services." 22 Id. (internal quotation and modifications omitted). Under the alter ego test, the Court considers 23 "whether the parent and subsidiary are not really separate entities," such as by looking at the 24 parental control of the subsidiary's internal affairs or daily operations. Id. (internal quotation 25 omitted). 26 In Daimler, the Supreme Court invalidated the agency test for establishing general 27 jurisdiction, explaining that the focus on whether the subsidiary's services were important "stacks 28 the deck, for it will always yield a pro-jurisdiction answer: Anything a corporation does through 5 1 an independent contractor, subsidiary, or distributor is presumably something that the corporation 2 would do 'by other means' if the independent contractor, subsidiary, or distributor did not exist." 3 134 S. Ct. at 759 (internal quotation omitted). Following Daimler, the Ninth Circuit has 4 recognized that the agency test is no longer available to establish jurisdiction over a parent 5 company, as "[s]uch a theory . . . sweeps too broadly to comport with the requirements of due 6 process." Ranza, 793 F.3d at 1071. 7 Pokémon asserts that Shopify (USA) Inc.'s contacts can be imputed to Shopify under the 8 alter ego test.1 (Pet.'s Reply at 2-3.) Under the alter ego test, Pokémon "must make out a prima 9 facie case (1) that there is such unity of interest and ownership that the separate personalities of the two entities no longer exist and (2) that failure to disregard their separate identities would 11 United States District Court Northern District of California 10 result in fraud or injustice." Ranza, 793 F.3d at 1073 (internal quotation and modifications 12 omitted). The first prong "requires a showing that the parent controls the subsidiary to such a 13 degree as to render the latter the mere instrumentality of the former." Id. (internal quotation 14 omitted). In short, the parent must exercise pervasive control, i.e., "when a parent corporation 15 dictates every facet of the subsidiary's business – from broad policy decisions to routine matters of 16 day-to-day operation." Id. (internal quotation omitted). Notably, "[t]otal ownership and shared 17 management personnel are alone insufficient to establish the requisite level of control." Id. Thus, 18 even when a parent corporation is involved directly in decision-making about its subsidiary's 19 holdings, but the entities still observe the corporate formalities necessary to maintain corporate 20 separateness, a plaintiff does not meet the alter ego test. Id. In Doe v. Unocal Corp., the Ninth Circuit found that the plaintiff did not make a prima 21 22 facie case of alter ego where the plaintiff showed that the parent corporation was involved in its 23 subsidiaries' acquisitions, divestments, and capital expenditures; formulated general business 24 policies and strategies applicable to its subsidiaries; provided loans and other types of financing to 25 its subsidiaries; maintained overlapping directors and officers with its subsidiaries; and referred to 26 1 27 28 The Court assumes that Pokémon does not attempt to assert the agency test to establish general jurisdiction, given the Supreme Court's Daimler decision. To the extent Pokémon is asserting the agency test to establish general jurisdiction, the Court rejects any such argument in light of Daimler and Ranza. 6 1 subsidiaries as divisions of the parent company in its annual report. 248 F.3d 915, 927-28 (9th 2 Cir. 2001). In Ranza, the Ninth Circuit likewise found that the plaintiff did not satisfy the alter 3 ego test where the plaintiff presented no evidence that the parent company and subsidiary failed to 4 observe their respective corporate formalities. 793 F.3d at 1074. There, the Ninth Circuit 5 acknowledged that the parent corporation was "heavily involved" in its subsidiary's operations, 6 including controlling the subsidiary's overall budget, having approval authority for large 7 purchases, establishing general human resource policies, being involved in some hiring decisions, 8 operating information tracking systems that all subsidiaries used, and ensuring that its brand was 9 marketed consistently throughout the world. Id. This level of involvement, however, was insufficient to show that the entities failed to observe separate corporate formalities, particularly 11 United States District Court Northern District of California 10 where the subsidiary negotiated its own contracts and licenses, made routine purchasing decisions 12 without the parent corporation's consultation, and had its own human resources division that 13 handled day-to-day employment issues, including hiring and firing. Id. 14 Here, Pokémon asserts that Shopify and Shopify (USA) Inc. do not have separate 15 personalities because: (1) Shopify listed the San Francisco office on its website without making 16 any mention of a separate entity; (2) the two entities share the same principal officers and 17 executives,2 as well as legal counsel; and (3) the two entities collect information under the same 18 privacy policy. (Pet.'s Reply at 2-3.) This showing, however, is inadequate to establish the 19 requisite level of control required to satisfy the alter ego test; there is no evidence that Shopify and 20 Shopify (USA) Inc. do not observe their respective corporate formalities. As discussed in Unocal 21 and Ranza, overlap in officers and use of general business policies alone is insufficient to establish 22 a prima facie case; similarly, the fact that Shopify lists the San Francisco office without 23 mentioning that it is a separate entity is not evidence that Shopify exercises day-to-day control 24 over Shopify (USA) Inc. Cf. Maple Leaf Adventures. Corp. v. Jet Tern Marine Co., Ltd., Case No. 25 2 26 27 28 In support of this argument, Pokémon provides a copy of the Statement of Information for Shopify (USA) Inc., which lists Shopify (USA) Inc.'s corporate officers. (1/20/17 Heilman Decl. ¶ 6, Exh. C, Dkt. No. 9.) Pokémon fails, however, to identify who Shopify's corporate officers are; thus, the Court is unable to determine if the corporate officers do in fact overlap. For the sake of argument, the Court will assume that there is complete overlap of management between Shopify and Shopify (USA) Inc. 7 1 15-cv-2504-AJB-BGS, 2016 WL 3063956, at *4, 8 (S.D. Cal. Mar. 11, 2016) (finding inadequate 2 evidence of an alter ego relationship where the subsidiary held itself out as "Selene Ocean 3 Trawlers," the same name under which the parent corporation did business; the "About Selene" 4 section was exclusively devoted to the parent corporation's history; the subsidiary's website held 5 itself out as the factory direct representative for the parent corporation's products; the parent 6 corporation's CEO was listed first on the subsidiary's website; and the parent corporation 7 advertised the subsidiary's opening). Because there is no showing that the corporate separation 8 between Shopify and Shopify (USA) Inc. is not real, Pokémon has not satisfied the "unity of 9 interest and ownership" prong of the alter ego test, and the Court need not analyze the "fraud or injustice" prong. See Ranza, 793 F.3d at 1075 n.9. The Court concludes that Pokémon has failed 11 United States District Court Northern District of California 10 to satisfy the alter ego test, and therefore the Court lacks general jurisdiction over Shopify. 12 13 14 ii. Specific Jurisdiction Next, the parties dispute whether the Court has specific jurisdiction over Shopify. In order to establish specific jurisdiction, the Ninth Circuit applies a three-prong test: 15 19 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. 20 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (internal quotation 21 omitted). 16 17 18 22 Here, Pokémon contends that Shopify has contacts to California via its subsidiary, Shopify 23 (USA) Inc., as well as by listing the San Francisco office as a Shopify address and by having an 24 annual conference for its partners and developers in San Francisco. (Pet.'s Reply at 4-5.) 25 Pokémon further argues that the subpoena arises out of or results from Shopify's contacts in the 26 forum. (Id. at 5.) The Court disagrees that the subpoena arises out of or results from Shopify's 27 contacts in the forum. Pokémon seeks documents relating to inventory information of and 28 merchandise sold by Tee Turtle, a Missouri corporation, in connection with the copyright 8 1 infringement lawsuit filed in Washington based on harms suffered by Pokémon in Washington. 2 (Tee Turtle Compl. ¶¶ 2, 4.) Thus, the subpoena arises solely out of Shopify's relationship with 3 Tee Turtle, a Missouri corporation, not with any California contacts. The activities of Shopify 4 (USA) Inc., which works on a messaging platform, and the annual conference held by Shopify in 5 San Francisco, are wholly irrelevant to this underlying copyright infringement lawsuit. The Court 6 therefore concludes that Pokémon has failed to establish specific jurisdiction as well. Because the 7 Court lacks personal jurisdiction over Shopify, the Court DENIES Pokémon's motion to compel. 8 B. 9 Even assuming that the Court had personal jurisdiction over Shopify, the Court finds that Service Pokémon's motion to compel must also be denied because Pokémon has failed to effect proper 11 United States District Court Northern District of California 10 service on Shopify. 12 "If the subpoena commands the production of documents, electronically stored 13 information, or tangible things or the inspection of premises before trial, then before it is served on 14 the person to whom it is directed, a notice and a copy of the subpoena must be served on each 15 party." Fed. R. Civ. P. 45(a)(4); see also Fed. R. Civ. P. 45 advisory committee note (1991) ("The 16 purpose of such [prior] notice is to afford other parties an opportunity to object to the production 17 or inspection, or to serve a demand for additional documents or things."). "Under Federal Rule of 18 Civil Procedure . . . 45(b), a subpoena directed to a corporation or unincorporated association may 19 be served by delivering a copy to an officer, managing agent, general agent, or any other agent 20 authorized by appointment or by law, and mailing a copy to the defendant." NGV Gaming, Ltd. v. 21 22 23 24 25 26 27 28 Upstream Point Molate, LLC, No. C-04-3955 SC (JCS), 2009 WL 428550, at *2 (N.D. Cal. Nov. 24, 2009). i. Agency First, Pokémon argues that Shopify should be deemed to have been served because it served the subpoena on Shopify (USA) Inc. (Pet.'s Mot. at 6; Pet.'s Reply at 8.) "Under California law, a foreign corporation may be served by serving the foreign corporation's 'general manager in this state.'" Halo Elecs., Inc. v. Bel Fuse Inc., 2010 WL 2605195, at *1 (N.D. Cal. June 28, 2010) (quoting Cal. Corp. Code § 2110). Service on a general manager is satisfied where "'the agent 9 1 served is of sufficient character and rank to make it reasonably certain that the defendant will be 2 appraised of the service made.'" Id. (quoting Cosper v. Smith & Wesson Arms Co., 53 Cal. 2d 77, 3 83 (1959)). Several courts have found service of an initial complaint and summons served on a 4 California agent to be sufficient where the agent was affiliated with the parent corporation as an 5 intended outlet, sales agent, or distributor, although at least one court has questioned whether 6 service on a California agent would be adequate for "a Rule 45 subpoena, which has service 7 requirements that courts have construed more narrowly . . . ." Fujikura Ltd. v. Finisar Corp., Case 8 No. 15-mc-80110-HRL (JSC), 2015 WL 5782351, at *6 (N.D. Cal. Oct. 5, 2015). Ultimately, the Court need not decide whether Shopify (USA) Inc. is Shopify's agent 10 because the Court finds that Pokémon failed to properly serve Shopify (USA) Inc. Here, Pokémon 11 United States District Court Northern District of California 9 served "Jason Baker," who apparently stated that he was authorized to accept service. (Heilman 12 Decl., Exh. D.) Shopify asserts, and Pokémon does not dispute, that there is no Jason Baker who 13 works for either Shopify or Shopify (USA) Inc, only a Josh Baker. (Resp.'s Opp'n at 11-12.) 14 Thus, it is not clear Pokémon even served an employee of Shopify (USA) Inc. Even assuming that 15 Pokémon in fact served Josh Baker, there is no showing that Mr. Baker is authorized to accept 16 service as he is not an officer or a designated agent of Shopify (USA) Inc.3 (Id.) Thus, the Court 17 concludes that Shopify cannot be deemed to have been served by virtue of service on Shopify 18 (USA) Inc., as Pokémon failed to properly serve Shopify (USA) Inc. 19 ii. Ostensible Authority Next, Pokémon contends that Shopify is still bound by service on Jason Baker because it 20 21 identified the San Francisco office as its own on its website, and did not contest service until 22 December, following a month of meet-and-confer process. (Pet.'s Mot. at 7, Pet.'s Reply at 7.) 23 Thus, Pokémon asserts that Shopify imbued Jason Baker with "ostensible authority." (Id.) 24 California Civil Code § 2317 defines ostensible authority as "such as a principal, 25 intentionally or by want of ordinary care, causes or allows a third person to believe the agent to 26 possess." Further, "[o]stensible authority must be established through the acts or declarations of 27 3 28 Josh Baker is not listed as an officer or agent for service of process on Shopify (USA) Inc.'s Statement of Information. (1/20/17 Heilman Decl., Exh. C.) 10 1 the principal and not the acts or declarations of the agent." Preis v. Am. Indem. Co., 220 Cal. App. 2 3d 752, 761 (1990). Where a principal knows that the agent held "himself out as clothed with 3 certain authority, and remains silent, such conduct on the part of the principal may give rise to 4 liability." Id. The Court disagrees that Pokémon has established ostensible authority. While Pokémon 6 argues that Shopify was "silent" about service and therefore "imbued Mr. Baker with ostensible 7 authority," the e-mail record is to the contrary. (Pet.'s Mot. at 7.) In Ms. Zipes's first e-mail 8 response to Mr. Heilman's query about the subpoena, she states in the very first paragraph that "we 9 have no 'Jason Baker' who works at Shopify," thus contradicting any alleged statement by Jason 10 Baker that he had authority to accept service. (Heilman Decl., Exh. G.) While Shopify may not 11 United States District Court Northern District of California 5 have explicitly challenged service, by stating that the individual who allegedly received service 12 was not an employee of Shopify, Shopify was denying the basis of service (i.e., that Pokémon had 13 served Shopify by serving Jason Baker). From that point on, Pokémon was on notice that service 14 might not be proper. The Court therefore rejects Pokémon's ostensible authority argument. 15 16 iii. Actual Notice Finally, Pokémon argues that Shopify should be compelled to comply with the subpoena 17 because it received actual notice of the subpoena when Mr. Heilman e-mailed Shopify on 18 November 3, 2016, informing them of the subpoena. (Pet.'s Reply at 9.) In support, Pokémon 19 cites to Chan v. Society Expeditions, Inc., where the Ninth Circuit found that under Rule 4, service 20 of a complaint was sufficient where the plaintiff personally served the owner and president of the 21 defendant corporation, but had failed to mention his status as the owner and president of the 22 defendant corporation in the affidavit of service. 39 F.3d 1398, 1404 (9th Cir. 1994). The Ninth 23 Circuit found that this "technical defect . . . d[id] not justify dismissal unless a party is able to 24 demonstrate actual prejudice." Id. 25 Chan is inapposite. First, it concerns service of an initial complaint and summons under 26 Rule 4, not a subpoena under Rule 45. See Fujikura Ltd., 2015 WL 5782351, at *6 (noting that 27 the service requirements of a Rule 45 subpoena have been construed more narrowly than service 28 of an initial complaint and summons). Second, Chan involved actual service on the owner and 11 1 president, with the "technical defect" being the failure to identify his status as owner and president 2 on the affidavit of service. See 39 F.3d at 1404. The instant case involves a far different situation 3 where Shopify was possibly never served, as the service was on an individual who may not have 4 even worked for Shopify or Shopify (USA) Inc., and in any case, lacked the authority to accept 5 service. This is far from a "technical defect" that Pokémon asserts; this would constitute failure to 6 serve altogether. Moreover, the Court rejects Pokémon's contention that "actual notice" alone is sufficient to 7 8 require compliance with a subpoena that is not properly served. See Fujikura Ltd., 2015 WL 9 5782351, at *7 (finding that the defendant's "insistence that . . . notice is enough for a complaint and therefore must be enough for a subpoena is wrong"). Taking this argument to its logical 11 United States District Court Northern District of California 10 extreme, service would never be needed because no one would be able to oppose a motion to 12 compel a response to a subpoena on the basis of failure to serve as the motion to compel itself 13 would give the respondent actual notice of the subpoena. Pokémon cites no authority for such a 14 proposition, and the Court finds it, to use a Pokémon term, quite Farfetch'd indeed. The Court therefore concludes that the motion to compel must be denied because the 15 16 subpoena was not properly served on Shopify. 17 IV. CONCLUSION 18 For the reasons stated above, the Court DENIES Pokémon's motion to compel because it 19 lacks jurisdiction over Shopify, and because the subpoena was not properly served on Shopify. 4 IT IS SO ORDERED. 20 21 Dated: February 22, 2017 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 22 23 24 25 26 27 4 28 Given these deficiencies, the Court need not determine whether Shopify (USA) Inc. has possession or custody of the records being sought, or the legal right to demand them. 12

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