Xcentric Ventures, LLC v. Arden

Filing 6

RESPONSE in Support re 1 MOTION to Quash filed byXcentric Ventures, LLC. (Attachments: # 1 Affidavit)(Gingras, David) (Filed on 12/30/2009)

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

David S. Gingras, Esq., CSB #218793 JABURG & WILK, P.C. 3200 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Xcentric Ventures, LLC IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA XCENTRIC VENTURES, LLC, an Arizona Limited Liability Corporation, Plaintiff, v. ELIZABETH ARDEN d/b/a COMPLAINTSBOARD.COM, et al., Defendants. Case No. C 09-80309 MISC JW (RS) DECLARATION OF DAVID GINGRAS IN SUPPORT OF PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO QUASH Hearing Date: Time: Courtroom: Jan. 20, 2010 9:30am 4

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1.

DECLARATION OF DAVID GINGRAS
DAVID GINGRAS hereby deposes and says: My name is David Gingras. I am a resident of the State of Arizona, am

over the age of 18 years, and if called to testify in court I could and would truthfully testify to the following information based upon my own personal knowledge. 2. I am an attorney licensed to practice law in the States of Arizona and

California, I am an active member in good standing with the State Bars of Arizona and California and I am admitted to practice and in good standing with the United States District Court for the District of Arizona and the United States District Court for the Northern, Central, and Eastern Districts of California.
DECLARATION OF DAVID GINGRAS 1 C 09-80309 MISC JW (RS)

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

3.

Since July 2009, I have been employed as General Counsel for Plaintiff

Xcentric Ventures, LLC. Prior to July 2009, I was employed as an associate attorney with the law firm of Jaburg & Wilk P.C. in Phoenix Arizona, and I currently remain "of counsel" to the firm. In my capacity as counsel for Xcentric Ventures I have been involved in the litigation of this action since its inception. I have possession of

Xcentric's files relating to this case, and I am personally familiar with the contents thereof. 4. Attached hereto as Exhibit A is a true and correct copy of a pleading

entitled "Motion for Extension of Time to Serve Defendant Elizabeth Arden And Motion for Alternative Service" filed on April 15, 2009 in the United States District Court for the District of Arizona in the matter of Xcentric Ventures, LLC v. Elizabeth Arden d/b/a ComplaintsBoard.com, et al., Case No. 2:08-cv-02299-HRH (the "Arizona Litigation"). 5. Attached hereto as Exhibit B is a true and correct copy of an order entered

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by the Court in the Arizona Litigation on April 17, 2009. 6. Attached hereto as Exhibit C is a true and correct copy of a pleading

entitled "Notice of Service of Process On Defendant Elizabeth Arden d/b/a ComplaintsBoard.com" filed in the Arizona Litigation on June 23, 2009.

Pursuant to 18 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on December 30, 2009.

/s/ David Gingras David Gingras

DECLARATION OF DAVID GINGRAS

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C 09-80309 MISC JW (RS)

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Certificate of Electronic Service I hereby certify that on December 30, 2009 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Erik Syverson, Esq. PICK & BOYDSTON LLP 617 South Olive Street, Suite 400 Los Angeles, CA 90014 Telephone: [phone] Facsimile: [phone] Google Inc. Attn: Google Legal Support 1600 Amphitheatre Parkway Mountain View, CA 94043 And a courtesy copy of the foregoing delivered: Honorable Richard Seeborg United States District Court 280 South First Street San Jose, CA 95113-3002 Attorneys for Defendant ComplaintsBoard.com

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s/Leah Matlack

DECLARATION OF DAVID GINGRAS

C 09-80309 MISC JW (RS)

Exhibit A

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Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone]

Maria Crimi Speth (012574) Laura A. Rogal (025159) JABURG & WILK, P.C. 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 [e-mail] [e-mail] [phone] Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA XCENTRIC VENTURES, L.L.C., an Arizona Limited Liability Corporation, Plaintiff, v. ELIZABETH ARDEN d/b/a COMPLAINTSBOARD.COM; MELBOURNE IT DBS, INC., a Delaware corporation; INTERNET NAMES WORLDWIDE, INC., a Delaware corporation; DOES 1-10, inclusive, Defendants. MOTION FOR EXTENSION OF TIME TO SERVE DEFENDANT ELIZABETH ARDEN AND MOTION FOR ALTERNATIVE SERVICE Case No. 2:08-cv-02299-HRH

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Pursuant to Rule 4(m), Federal Rules of Civil Procedure, Plaintiff Xcentric Ventures, LLC ("Xcentric") requests an enlargement of time to locate and effect service upon Defendant Elizabeth Arden d/b/a Complaintsboard.com ("Complaintsboard"). Additionally, pursuant to Rule 4(h), Federal Rules of Civil Procedure, Xcentric requests that the Court allow service upon Complaintsboard to be completed using alternative means. I. THERE IS GOOD CAUSE TO EXTEND TIME TO SERVE DEFENDANT Xcentric has attempted to serve Complaintsboard; however, due to the evasive nature of Complaintsboard and the apparent lack of any type of legal entity behind the website, Xcentric has been unable to serve the operator of the website at this time. The
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Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone]

website www.complaintsboard.com itself, which contains the content which is subject of this litigation, does not contain any contact information on it. Whereas by law, the website must provide registration information that is available to the public, that registration information is not helpful in serving process on Complaintsboard. As the domain name registration shows, the URL has been registered to a post office box. See Domain name registration for www.complaintsboard.com, attached hereto as Exhibit "A". Unfortunately, service upon a post office box does not qualify as "proper service" under Rule 4. It is clear that the registrant's name "Elizabeth Arden" is false, and that alone is not enough to determine upon whom process should be served. Counsel for Xcentric has performed investigations as to who the underlying owner of the website is; however, a usable address for service has not yet been elicited. Internet searches have revealed that the telephone number affiliated with the domain name registration ­ [phone] ­ is associated with a number of websites that generate scams and/or spam. Whereas each of these website's registrations utilizes the same post office box and telephone number for the registration, there are a large number of different individuals' names associated with the website. Even presuming that the registrants' names are correct as given, Xcentric has been unable to track down each of these individuals within the prescribed 120 day period. Xcentric may be able to determine the true and correct party upon whom it can effectuate service through the company that provides hosting services for the website. To date, Xcentric has made good faith efforts to try to locate the proper party for service; however, those efforts have thus far been fruitless. "The 1993 amendments to General Rule 4(m) gave courts greater leeway to preserve meritorious lawsuits despite untimely service of process." U.S. v. 2,164 Watches, More or Less Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 772 (9th Cir.2004). The Ninth Circuit has previously held that district courts have broad discretion under General Rule 4(m) to extend time for service even without a showing of good cause. In re Sheehan, 253 F.3d 507, 513 (9th Cir.2001). A district court may, for instance, extend time for service retroactively after the 120-day service period has 2
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Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone]

expired. Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir.2003). Such discretion is necessary and appropriate here. An extension of time should be granted to allow Xcentric additional time to locate and serve Defendant Elizabeth Arden d/b/a Complaintsboard.com. II. THERE IS GOOD CAUSE TO ALLOW ALTERNATIVE SERVICE In addition to the enlargement of time Xcentric must be allowed to serve the Summons and Complaint on Complaintsboard by email. Xcentric may effectuate service on Complaintsboard "in the manner prescribed by Rule 4(e)(1) for serving an individual". It follows therefore that Complaintsboard must be served "pursuant to the law of the state in which the district court is located". Rule 4(e), Federal Rules of Civil Procedure. Therefore, Xcentric may utilize any form of service contemplated by the State of Arizona, which is the state in which this Court is located. Rule 4.2, Arizona Rules of Civil Procedure, provides the basis upon which a plaintiff may effect service of process on an out-of-state defendant. Rule 4.2(f) allows for service by publication Where the person to be served is one whose present residence is unknown but whose last known residence was outside the state, or has avoided service of process. Rule 4.2(f), Ariz.R.Civ.P. The rule allows weekly publication for one month of the Summons, accompanied by a statement as to the manner in which a copy of the pleading being served may be obtained, in a newspaper published in the county where the action is pending. Id. Incidentally, Rule 4.2(f) also requires, "when the residence of the person to be served is known," that the Summons and pleading be mailed to that residence. Service by email is most appropriate here given the nature of Complaintsboard's business and the lack of any known (or possibly even known) physical business address. "Trial courts have authorized a wide variety of alternative methods of service including publication, ordinary mail, mail to the defendant's last known address, delivery to the defendant's attorney, telex, and most recently, email." Rio Properties, Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1016 (9th Cir.2002); see SEC v. Tome, 833 F.2d 1086, 1094 (2d Cir.1987) (condoning service of process by publication in the Int'l Herald Tribune ); Smith 3
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Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone]

v. Islamic Emirate, Nos. 01 Civ. 10132, 01 Civ. 10144, 2001 WL 1658211, at *2-*3, 2001 U.S. Dist. LEXIS 21712, at *5-*13 (S.D.N.Y. Dec. 26, 2001) (authorizing service of process on terrorism impresario Osama bin Laden and al-Qaeda by publication); Levin v. Ruby Trading Corp., 248 F.Supp. 537, 541-44 (S.D.N.Y.1965) (employing service by ordinary mail); Int'l Controls Corp. v. Vesco, 593 F.2d 166, 176-78 (2d Cir.1979) (approving service by mail to last known address); Forum Fin. Group, LLC v. President & Fellows, 199 F.R.D. 22, 23-24 (D.Me.2001) (authorizing service to defendant's attorney); New Eng. Merchs. Nat'l Bank v. Iran Power Generation & Transmission Co., 495 F.Supp. 73, 80 (S.D.N.Y.1980) (allowing service by telex for Iranian defendants); Broadfoot v. Diaz ( In re Int'l Telemedia Assoc.), 245 B.R. 713, 719-20 (Bankr.N.D.Ga.2000) (authorizing service via email). Even if facially permitted by Rule 4(e), a method of service of process must also comport with constitutional notions of due process. To meet this requirement, the method of service crafted by this Court must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (Jackson, J.). In determining that service by email was appropriate under facts nearly identical to those here, the court in Rio Properties concluded: Considering the facts presented by this case, we conclude not only that service of process by email was proper-that is, reasonably calculated to apprise RII of the pendency of the action and afford it an opportunity to respond-but in this case, it was the method of service most likely to reach RII. Rio Properties, Inc., 284 F.3d at 1017. The same situation exists here. On its website, Complaintsboard offers no physical address through which communications can be made. Instead, it specifically states "If you have any constructive thoughts, creative ideas, or reasonable offers, please, contact us immediately via E-mail", thereby offering email as the only forum for communication. See Printout from Complaintsboard.com, attached hereto as Exhibit "B". Similarly speaking, the domain name registration for Complaintsboard only offers up a P.O. Box for service of any physical communications. 4
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Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone]

It appears that Complaintsboard "has embraced the modern e-business model" and "[i]n fact, [it] structured its business such that it could be contacted only via its email address." Rio Properties, Inc., 284 F.3d at 1017-1018. Since Complaintsboard "listed no easily discoverable street address in the United States" and has "designated its email address as its preferred contact information", service by email is proper. Rio Properties, Inc., 284 F.3d at 1018. III. CONCLUSION Defendant Elizabeth Arden d/b/a Complaintsboard.com has failed to allow any identifying information to be made publicly available. As a result, the Court must enter an Order (1) granting Xcentric an additional ninety (90) days in which to serve Complaintsboard, and (2) allowing service of the Summons and Complaint on Complaintsboard to be effectuated by email at all email addresses associated with the website www.complaintsboard.com. DATED this 15th day of April, 2009. JABURG & WILK, P.C. s/ Laura Rogal Maria Crimi Speth Laura A. Rogal Attorneys for Plaintiff

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Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone]

CERTIFICATE OF SERVICE I hereby certify that on the 15th day of April, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. I have also caused to be hand delivered a courtesy copy of the foregoing to: Honorable H. Russel Holland UNITED STATES DISTRICT COURT Sandra Day O'Connor Courthouse 401 W. Washington St. Phoenix, Arizona 85003 I have also sent a courtesy copy via facsimile and e-mail of the foregoing to: John J. Balitis Fennemore Craig, P.C. 3003 North Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Fax: [phone] E-mail: [e-mail] Attorneys for Defendants Melbourne ITS DBS, Inc. and Internet Names Worldwide, Inc s/Debra Gower

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Exhibit B

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

XCENTRIC VENTURES, L.L.C., an Arizona Limited Liability Corporation,

) ) ) ) Plaintiff, ) ) vs. ) ) ELIZABETH ARDEN, d/b/a ) Complaintsboard.com, et al., ) ) Defendants. ) ___________________________________)

No. 2:08-cv-2299-HRH

ORDER Motion for Extension of Time and for Alternative Service Plaintiff moves for an extension of time to effect service pursuant to Rule 4(m), Federal Rules of Civil Procedure, and seeks leave to effect service of its summons and complaint by alternative service pursuant to Rule 4(h), Federal Rules of Civil Procedure.1 It appearing that plaintiff has diligently pursued all

available means of identifying a viable physical address for service of defendant Elizabeth Arden, d/b/a Complaintsboard.com, the motion for extension of time for an additional 90 days within which to serve that defendant is granted. With respect to alternative service, it is not clear to the court whether the named defendant is an individual or a corporate

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or other legal entity.

That uncertainty makes no substantial

difference, for both Rule 4(e) and 4(h) make provision for various and alternative means of service. In order that constitutional due process concerns be eliminated, service of plaintiff's summons and complaint as to Elizabeth Arden, d/b/a Complaintsboard.com, shall be effected as follows: (1) By publication in accordance with Rule 4.2, Arizona Rules of Civil Procedure; (2) By mailing a copy of plaintiff's complaint and summons, with first-class postage prepaid, to any known address associated with the defendant; (3) By e-mail, sending a copy of plaintiff's complaint and summons to the defendant's self-identified

e-mail address; and (4) By preparing and conveying orally or by voice mail to defendant at the telephone number affiliated with the defendant: 510-595-2002, advice of the

complaint and summons and where copies of the same may be obtained. the message Plaintiff will preserve a copy of transmitted or conveyed to

orally

defendant by voice mail.

DATED at Anchorage, Alaska, this 17th day of April, 2009.

/s/ H. Russel Holland United States District Judge

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Exhibit C

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