Zynga Game Network, Inc. v. Williams et al

Filing 26

MOTION To Serve Defendants by Electronic Mail ; and Memorandum of Points and Authorities filed by Zynga Game Network, Inc.. (Attachments: # 1 Proposed Order Authorizing Plaintiff to Serve Defendants by Electronic Mail)(Caplan, David) (Filed on 10/8/2010)

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Larry W. McFarland (Bar No. 129668)
E-Mail: [e-mail]
Dennis Wilson (Bar No. 155407)
E-Mail: [e-mail]
David K. Caplan (Bar No. 181174)
E-Mail: [e-mail]
Tara D. Rose (Bar No. 256079)
E-Mail: [e-mail]
KEATS McFARLAND & WILSON LLP
9720 Wilshire Boulevard
Penthouse Suite
Beverly Hills, California 90212
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
ZYNGA GAME NETWORK INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ZYNGA GAME NETWORK INC., a Delaware
Corporation,

CASE NO. CV-10:01022 JF (PVTx)

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Plaintiff,
v.
JASON WILLIAMS, an individual, LUNA
MARTINI, an individual, WAN-WEN KUO, an
individual, and JOHN DOES 4-5 D/B/A MW
GROUP

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ADMINISTRATIVE MOTION TO SERVE
DEFENDANTS BY ELECTRONIC MAIL;
AND
MEMORANDUM OF POINTS AND
AUTHORITIES
No Hearing Date Requested

Defendants.
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CASE NO. CV-10:01022 JF (PVTx)

ADMINISTRATIVE MOTION TO SERVE
DEFENDANTS BY ELECTRONIC MAIL

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MOTION

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Plaintiff Zynga Game Network Inc. (“Zynga”) hereby moves the Court pursuant to Federal

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Rule of Civil Procedure (“Rule”) 4(f)(3) and Civil Local Rule 7-111 for an order authorizing Zynga

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to serve the defendants Jason Williams, Luna Martini and Wan-Wen Kuo in this matter

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(“Defendants”) with process by electronic mail (“email”) in English. This motion is based on the

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Motion, the Declaration of David K. Caplan in Support of Zynga’s Administrative Motion to Serve

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Defendants by Electronic Mail (“Caplan Decl.”), the [Proposed] Order, all pleadings on file in this

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action, and any other matter that may be submitted in support of the motion.

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ISSUE TO BE DECIDED

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Whether Zynga shall be granted leave to serve Defendants with process, in English, via

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email.

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MEMORANDUM OF POINTS AND AUTHORITIES

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I.

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INTRODUCTION

Plaintiff Zynga Game Network Inc. (“Zynga”) respectfully requests that the Court authorize
it to serve Defendants with process, in English, via email pursuant to Rule 4(f)(3).

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II.

FACTS

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A. Background

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Zynga filed this action on March 10, 2010 against Jason Williams, Luna Martini and

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anonymous defendants doing business as MW Group. (Dkt. No. 1.) On September 7, 2010, Zynga

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filed its First Amended Complaint adding Wan-Wen Kuo as a defendant and alleging that he is

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located in Taiwan. (See Dkt. No. 22, ¶ 5.)

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Plaintiff alleges that Defendants, without Plaintiff’s authorization or approval, created and

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operated websites at the Internet domain names MAFIAWARSDIRECT.COM,

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MWBLACKMARKET.COM and MWFEXPRESS.COM through which Defendants sold various in-

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game digital items for use in playing one of Zynga’s most popular properties, Mafia Wars (the

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Zynga has filed this motion as an administrative motion without requesting a hearing date because
the motion is unopposed and because a prompt ruling in less than the normal 35 days required for
noticed motions will allow Zynga to move this case forward expeditiously.
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CASE NO. CV-10:01022 JF (PVTx)

ADMINISTRATIVE MOTION TO SERVE
DEFENDANTS BY ELECTRONIC MAIL

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“Game”), in contravention of the Game’s terms of service and/or security measures, and in violation

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of Plaintiff’s trademark rights and the license they received from Zynga to participate in the Game.

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(See First Amended Complaint (“Dkt. No. 22”) ¶¶ 11-32.)

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On May 20, 2010, Magistrate Judge Trumbull granted Zynga authority to issue third party

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subpoenas to confirm the identities and locations of the Defendants. (Dkt. No. 14.) Zynga

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subsequently issued subpoenas as authorized by the Court, and analyzed the documents and

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information it received in response to those subpoenas. (Caplan Decl., ¶ 2.)

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B. Physical Addresses for Defendants.

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Zynga unsuccessfully attempted to serve Defendants at the physical addresses listed for

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Defendants in the Whois database information Domain History for the Internet domain names

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MWBLACKMARKET.COM and MWFEXPRESS.COM. (See Caplan Decl. ¶¶ 4-5; see also

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Declaration of Tara D. Rose in support of Zynga’s Motion to Continue Case Management

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Conference (“Dkt. No. 13”) ¶¶ 4-6.) The physical address listed in the Whois database information

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for MWBLACKMARKET.COM is not a home or business address for Defendants, but rather is a

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UPS Depot from which cargo trucks and vans are dispatched. (See Dkt. No. 13, ¶¶ 4-6.) The

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physical address listed in the Whois database information for MWFEXPRESS.COM does not exist

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in the city listed for the domain name. (See id.)

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The physical address listed in the Whois database information for

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MAFIAWARSDIRECT.COM was for Indiana University East and the Whois database address did

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not include a suite, dorm or office number necessary to locate a person or entity at the University.

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(See Dkt. No. 13 ¶¶ 7-8.)

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The documents and information Zynga received in response to its subpoenas for defendants

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Jason Williams and Luna Martini identified the same bogus addresses as those listed in the Whois

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database information Domain History for the Internet domain names registered to these defendants,

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as well as three additional addresses in Seattle, Washington, Chicago, Illinois, and New York, New

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York, all of which do not exist. (See Caplan Decl. ¶¶ 4-6.)

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CASE NO. CV-10:01022 JF (PVTx)

ADMINISTRATIVE MOTION TO SERVE
DEFENDANTS BY ELECTRONIC MAIL

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C. Email Addresses for Defendants

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Although the physical addresses associated with Defendants have proved to be bogus,

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Plaintiff has uncovered information regarding email addresses associated with the defendants.

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The WHOIS database lists the registrant of the MAFIAWARSDIRECT.COM domain name

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as defendant Jason Williams, with an email address of <[e-mail]>. (See Caplan

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Decl., Exh. 2.) The website located at http://MAFIAWARSDIRECT.COM listed the operator’s

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email address as <[e-mail]>. (See id., Exh. 7.)

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The WHOIS database lists the registrant of the MWFEXPRESS.COM domain name as

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defendant Luna Martini, with an email address of <[e-mail]>. (See Caplan Decl.,

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Exh. 4). The website located at http://MWFEXPRESS.COM listed the operator’s email address as

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<[e-mail]>. (See id., Exh. 11.)

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The WHOIS database lists the registrant of the MWBLACKMARKET.COM domain name

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as defendant Jason Williams, with an email address of <[e-mail]>. (See Caplan

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Decl., Exh. 3). The website located at http://MWBLACKMARKET.COM listed the operator’s

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email address as <[e-mail]>. (See id., Exh. 5). Zynga issued a subpoena

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to GoDaddy regarding the registration of the MWBLACKMARKET.COM domain name and

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GoDaddy produced documents which identified the user of the <[e-mail]> email

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address as the registrant of the MWBLACKMARKET.COM domain name. (See id., Exh. 8.)

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Zynga issued subpoenas to PayPal for information regarding the users of the email addresses

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<[e-mail]>,<[e-mail]>, <[e-mail]>,

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<[e-mail]>, <[e-mail]>. In response, Paypal produced

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documents which identify Wan-Wen Kuo of Taiwan with an email address of

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<[e-mail]>. (See Caplan Decl., Exh. 1.)

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In summary, the documents and information Zynga received in third party discovery, as well

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as Zynga’s own investigation of publicly-available information, have revealed the following email

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addresses that Defendants currently use or have used in the past: [e-mail]

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(Defendant Jason Williams); [e-mail] (defendant Jason Williams);

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CASE NO. CV-10:01022 JF (PVTx)

ADMINISTRATIVE MOTION TO SERVE
DEFENDANTS BY ELECTRONIC MAIL

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[e-mail] (defendant Jason Williams); [e-mail] (defendant Luna

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Martini); [e-mail] (defendant Luna Martini); and [e-mail]

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(defendants Jason Williams and Wan-Wen Kuo). (See Caplan Decl., Exhs. 1-8.)

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III.

ARGUMENT

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Federal Rule of Civil Procedure (“Rule”) 4(f) governs the service of defendants outside of

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the United States. The rule permits an individual in a foreign country to be served by “means not

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prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). The Ninth

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Circuit has confirmed that forms of service permitted by Rule 4(f)(3) are valid, provided they: 1) are

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court-directed; 2) are not prohibited by international agreement; and 3) comport with constitutional

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notions of due process in that they are “reasonably calculated, under all the circumstances, to apprise

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interested parties of the pendency of the action and afford them an opportunity to present their

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objections.” Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014-16 (9th Cir. 2002)

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(quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S.Ct 652

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(1950) (Jackson, J.)).

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Furthermore, the Ninth Circuit has emphasized that service pursuant to Rule 4(f)(3) stands

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“independently, on equal footing” with other methods of service prescribed in Rule 4(f), and is

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“neither a ‘last resort’ nor ‘extraordinary relief.’” Rio Properties, 284 F.3d at 1015 (quoting Forum

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Fin. Group LLC v. President & Fellows, 199 F.R.D. 22, 23 (D. Me. 2001). In fact, the Ninth Circuit

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specifically “disapprove[d] of the statements in [Graval v. P.T. Bakrie & Bros., 986 F.Supp. 1326

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(C.D. Cal. 1996)] which would require attempted service by all feasible alternatives before service

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under Rule 4(f)(3) is allowed.” Rio Properties, 284 F.3d at 1016. Accordingly, it is appropriate for

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the Court to grant Zynga’s motion, provided the method of service it is requesting does not violate

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any international agreement and is reasonably calculated to provide the Defendants with notice of

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the pending litigation so that they may defend against Zynga’s suit. As discussed below, Zynga’s

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requested method of service does not violate any international agreement and comports with due

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process.

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CASE NO. CV-10:01022 JF (PVTx)

ADMINISTRATIVE MOTION TO SERVE
DEFENDANTS BY ELECTRONIC MAIL

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A. Email Service Does Not Violate Any International Agreement

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The primary international agreement regarding service of judicial documents in foreign

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countries is the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil

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or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (the “Hague Convention”

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or the “Convention”). See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). However, the

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Convention does not apply in this case for two independent reasons.

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First, the Convention does not apply when the government of the state or territory in which

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the defendant resides is not a signatory to the Convention. See, e.g., Rio Properties, 284 F.3d at

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1015 n.4. Paypal’s documents confirm that Defendant Wan-Wen Kuo resides in Taiwan. (Caplan

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Decl., Exh. 1.) Taiwan is not a signatory to the Hague Convention. (See Caplan Decl., Exh. 9.

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(Status Table).)

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Second, by its own terms, the Convention does not apply “where the address of the person to

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be served . . . is not known.” Hague Convention, Art. 1. As noted above, defendants Jason Williams

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and Luna Martini have provided their online service providers with bogus addresses, making it

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impossible for Zynga to confirm the location of these defendants. Therefore, the Convention does

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not apply to these Defendants.

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For both these reasons, the Hague Convention does not govern service of process on

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Defendants, nor is Zynga aware of any other international agreement that would be relevant to this

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motion.

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B. Email Service Comports With Due Process

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As noted above, alternative service under Rule 4(f)(3) comports with due process if it is

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“‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of

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the action and afford them an opportunity to present their objections.’” Rio Properties, 284 F.3d at

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1016. In this case, email is the method of service most likely to reach the Defendants. In Rio

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Properties, the Ninth Circuit affirmed a district court decision authorizing the plaintiff to use email to

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serve a defendant after the plaintiff was unable to locate a valid physical address for service on the

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defendant, which operated an online sports gambling site. In finding that email service satisfied due

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CASE NO. CV-10:01022 JF (PVTx)

ADMINISTRATIVE MOTION TO SERVE
DEFENDANTS BY ELECTRONIC MAIL

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process, the Ninth Circuit observed, “when faced with an international ebusiness scofflaw, playing

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hide-and-seek with the federal court, email may be the only means of effecting service of process.”

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284 F.3d at 1018.

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This case presents a similar scenario. Third party discovery has not confirmed valid service

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addresses for Defendants. However, Zynga has identified several email addresses that Defendants

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themselves provided to their customers, and to online service providers upon whom they relied to

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keep their business operating. It is very likely that all of these email addresses are valid because

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Defendants must rely on them to receive business-related correspondence from their customers and

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service providers. Under these circumstances, it is much more likely that email service will reach

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Defendants than that physical service will reach them. On this record, and in light of the Ninth

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Circuit’s clear language that email service satisfies due process and stands on “equal footing” with

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other methods of service, it is appropriate for the Court to authorize Zynga to serve the Defendants

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by email. See Rio Properties, 284 F.3d at 1015.

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Other courts in this District have granted email service motions filed by Zynga in similar

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cases. See, e.g., Zynga v. Erkan, et al., Case No. CV:09-3264 SC (Dkt. No. 33); Zynga v. Greene, et

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al., Case No. CV:09-2744 SI (Dkt. No. 65); Zynga v. Suhail, et al., Case No. CV:09-5301 JSW (Dkt.

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No. 21).2

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Zynga further requests authorization to serve Defendants with process in English. Zynga

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bases this request on the fact that Defendants’ websites were written in English (see Caplan Decl.,

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Exhs. 5-7) and the fact that Defendants use several email addresses that use English phrases, such as

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“black market,” “direct” and “express”.

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Although similar, these cases are not Related to this case per Civil Local Rule 3-12.
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CASE NO. CV-10:01022 JF (PVTx)

ADMINISTRATIVE MOTION TO SERVE
DEFENDANTS BY ELECTRONIC MAIL

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IV.

CONCLUSION

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For the foregoing reasons, Zynga respectfully requests that the Court issue an order

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authorizing Zynga to serve the Defendants with process, in English, via email. A proposed order is

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submitted herewith. Zynga is prepared to provide any additional information the Court may request

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regarding this Motion.

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Dated: October 8, 2010

By:

/s/
David K. Caplan
Keats McFarland & Wilson LLP
Attorneys for Plaintiff
ZYNGA GAME NETWORK INC.

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CASE NO. CV-10:01022 JF (PVTx)

ADMINISTRATIVE MOTION TO SERVE
DEFENDANTS BY ELECTRONIC MAIL