Libyan Jamahiriya Broadcasting Corporation v. Saleh

Filing 12

Ex Parte Application for Order for Alternative Service filed by Libyan Jamahiriya Broadcasting Corporation. (Attachments: # 1 Affidavit Declaration of Al Duncan, # 2 Affidavit Declaration of John Fuisz, # 3 Exhibit Exhibit A to Fuisz Declaration, # 4 Exhibit Exhibit B to Fuisz Declaration, # 5 Exhibit Exhibit C to Fuisz Declaration, # 6 Exhibit Exhibit D to Fuisz Declaration, # 7 Exhibit Exhibit E to Fuisz Declaration, # 8 Exhibit Exhibit F to Fuisz Declaration, # 9 Exhibit Exhibit G to Fuisz Declaration, # 10 Exhibit Exhibit H to Fuisz Declaration, # 11 Exhibit Exhibit I to Fuisz Declaration, # 12 Exhibit Exhibit J to Fuisz Declaration)(Ishimoto, Jennifer) (Filed on 9/27/2010)

1 JOHN R. FUISZ (pro hac vice)
THE FUISZ LAW FIRM
2 1455 Pennsylvania Avenue, NW
Suite 400
3 Washington, DC 20004
Telephone: [phone]
4 E-mail: [e-mail]
5 JENNIFER L. ISHIMOTO (SBN 211845)
BANIE & ISHIMOTO LLP
6 2225 East Bayshore Road, Suite 200
Palo Alto, CA 94303
7 Telephone: [phone]
Facsimile: [phone]
8 E-mail: [e-mail]
9 Attorneys for Plaintiff
Libyan Jamahiriya Broadcasting Corporation
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Libyan Jamahiriya Broadcasting
Corporation,

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Civil Action No. 5:10-CV-03713-JF PVT

Plaintiff,
vs.
Abdalla Saleh,
Defendant.

EX PARTE APPLICATION FOR ORDER
AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENDANT PURSUANT
TO F.R.C.P. 4(f)(3); MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT
THEREOF
[Filed concurrently the Declarations of Al Duncan
and John Fuisz as well as an [proposed] Order]

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EX PARTE APPLICATION

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EX

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BANIE & ISHIMOTO
LLP

-1EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVAL ACTION NO. 5:10-CV-03713-JF PVT

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Plaintiff Libyan Jamahiriya Broadcasting Corporation (“LJBC”) seeks an order

2 authorizing service of the Summons and Complaint in this matter upon Defendant Abdalla Saleh
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via e-mail, pursuant to Federal Rule of Civil Procedure 4(f)(3).

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Such application is made upon the grounds that LJBC has not been able to locate Defendant
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despite reasonable diligence because Defendant is purposefully concealing his location.

7 Moreover, the Defendant has already consented to the jurisdiction of this district in his 17 U.S.C.
8 §512 counter-designation in which he stated under penalty of perjury:
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I hereby consent to the jurisdiction of the Federal District Court for the district in
which I reside (or if my address is outside of the United States, the judicial district
in which YouTube is located, and will accept service of process from the
claimant.)

12 Declaration of John R. Fuisz at ¶3 (Exhibit B).
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Such application is based upon this Application, the Memorandum of Points and

14 Authorities hereto, the Declarations of Al Duncan and John R. Fuisz, and exhibits thereto, filed
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concurrently herewith, and the complete files and records of this action, and other such matters

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that may be considered by the Court.
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Dated: September 27, 2010

The Fuisz Law Firm

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_/s/ John R. Fuisz_____________________
John R. Fuisz (pro hac vice)

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Banie & Ishimoto LLP

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EX

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BANIE & ISHIMOTO
LLP

_/s/ Jennifer Ishimoto_____________________
Jennifer Ishimoto (SBN 211845)
Attorneys for Plaintiff
Libyan Jamahiriya Broadcasting Corporation
-2EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVAL ACTION NO. 5:10-CV-03713-JF PVT

MEMORANDUM OF POINTS AND AUTHORITIES

1
2 I.

NOTICE

3

As explained in detail below and in the accompanying Declarations of Al Duncan, Private

4 Investigator, and John R. Fuisz, counsel for Plaintiff Libyan Jamahiriya Broadcasting Corporation
5 (“LJBC”), Plaintiff has not been able to locate the Defendant Abdalla Saleh who is subject to this
6 Ex Parte Application. Civil Local Rule 7-10 allows the ex parte application as long as the
7 application is permitted by another statute or rule. Here, California Rule of Court Rule 3.1204(b)
8 permits an application for an ex parte order to proceed without notice upon a showing that the
9 applicant in good faith attempted to inform the opposing party but was unable to do so. Because
10 Plaintiff has not been able to locate Defendant, Plaintiff has resorted to filing this Ex Parte
11 Application for an order authorizing service of the Summons and Complaint in this matter upon
12 Defendant.
13
14 II.

INTRODUCTION

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Plaintiff Libyan Jamahiriya Broadcasting Corporation (“LJBC”) initiated this action

16 against Defendant Abdalla Saleh, for copyright infringement (Counts 1-4). Pursuant to Federal
17 Rule of Civil Procedure 4(f)(3), Plaintiff requests an order allowing service of process on the
18 Defendant via email. Email service is appropriate and necessary in this case because Defendant
19 (1) provided YouTube LLC an incorrect physical address and (2) used a yahoo.com email
20 account to communicate with YouTube LLC and appears to rely on email for communication.
21 Notwithstanding the Defendant’s concealment of his physical location, Plaintiff still has the
22 ability to contact Defendant directly and provide notice of Plaintiff’s claims against him.
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Absent the ability to serve the Defendant by email, Plaintiff will almost certainly be left

24 without the ability to pursue a remedy.
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EX

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BANIE & ISHIMOTO
LLP

-3EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVAL ACTION NO. 5:10-CV-03713-JF PVT

1 II.

STATEMENT OF FACTS

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Plaintiff alleges and can demonstrate that an individual identified as “abdoellibie” posted

3 videos that contain the un-authorized use and un-authorized alteration, including removal of
4 names and authors of the copyrighted materials.
Plaintiff LJBC provided YouTube LLC with Notification under the United States Digital

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6 Millennium Copyright Act (“DMCA”), 17 U.S.C. §512 that an individual with the user name
7 “abdoellibie” posted materials that infringed upon one or more LJBC copyrights. Declaration of
8 John R Fuisz at ¶2 (Exhibit A).
Defendant, “abdoellibie,” using the email address [e-mail] filed a counter-

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10 designation. In the counter-designation, “abdoellibie” identified himself as
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Name, address, and telephone number:
Abdallah Saleh,
20 Shallmar Blvd, Toronto ON
Tel.: [phone]
E-mail: [e-mail]
YouTube user Account Name: Abdoellibie

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Decl. of Fuisz at ¶3 (Exhibit B). In addition, Defendant stated under penalty of perjury:

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I hereby consent to the jurisdiction of the Federal District Court for the district in
which I reside (or if my address is outside of the United States, the judicial district
in which YouTube is located, and will accept service of process from the
claimant.)

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20 Decl. of Fuisz at ¶3 (Exhibit B).
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YouTube LLC is located at 901 Cherry Ave, San Bruno, California 94066. Decl. of Fuisz

22 at ¶4.
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On August 20, 2010 this lawsuit was filed. That same day, 17 U.S.C. §512(g) Notice of

24 this lawsuit was provided to YouTube LLC via fax and email (fax [phone] and email
25 [e-mail]) and by email to Abdalla Saleh (email [e-mail]). Decl.
26 of Fuisz at ¶5 (Exhibit C).
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EX

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BANIE & ISHIMOTO
LLP

-4EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVAL ACTION NO. 5:10-CV-03713-JF PVT

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On August 21, 2010, the Civil Cover Sheet, Complaint, Summons, Certification of

2 Interest, Application for Pro Hac Vice, Order Setting Initial Case Management Conference and
3 ADR Deadlines, Civil Standing Orders for Magistrate Judge Joseph C. Spero, Notice of Rule
4 Discontinuing Mail Service, Notice of Assignment of Case and Order of Chief Judge In Re:
5 Electronic Filing was sent by U.S. Post Office Global Express to Abdalla Saleh, 20 Shallmar Bvd,
6 Toronto ON, Canada. Decl. of Fuisz at ¶6 (Exhibit D). The address 20 Shallmar is an apartment
7 building and requires an apartment number for delivery, such that the August 21, 2010 package
8 has not been able to be delivered. Decl. of Fuisz at ¶6 (Exhibit E).
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Private Investigator, Al Duncan, was retained to find a proper address for Defendant. As

10 of September 13, 2010, Addalla Saleh does not have an Ontario driver’s license or phone records
11 under his name at 20 Shallmar Blvd. Defendant has no property records or liens registered under
12 his name. All available reporting services to the Private Investigator reveal no information under
13 Defendant’s name. Declaration of Al Duncan.
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On or about September 14, 2010, Plaintiff noticed that Defendant has begun to remove the

15 accused videos. For example, the posting on blip.tv identified at Paragraph 11 of the Complaint
16 has been removed by the poster. It is unknown whether the Defendant is keeping evidence or
17 destroying the evidence in this case or whether Defendant will re-post the infringing material
18 while continuing to evade this Court.
19 III.

ARGUMENT

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A.

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Federal Rule of Civil Procedure 4(f)(3) allows this Court to authorize service of process to

The Court may Authorize Service via Email pursuant to FRCP 4(f)(3)

22 be made on an individual in a foreign country by any means not prohibited by international
23 agreement as the Court directs. Rio Properties Inc. v. Rio International Interlink, 284 F.3d 1007,
24 1014 (9th Cir. 2002). “By its plain language, service under Rule 4(f)(3) must be (1) directed by
25 the Court; and (2) not prohibited by international agreement. No other limitations are evident
26 from the text.” Popular Enters., LLC v. Webcom Media Group, Inc., 225 F.R.D. 560, 561 (E.D.
27 Tenn. 2004)(Decl. of Fuisz at ¶7 (Exhibit F)). Rule 4 does not require a party to attempt service
EX

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BANIE & ISHIMOTO
LLP

-5EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVAL ACTION NO. 5:10-CV-03713-JF PVT

1 of process by those methods enumerated in 4(f) subsections (1) and (2) before petitioning for
2 alternative relief under Rule 4(f)(3). Rio Properties Inc., 284 F.3d at 1015.
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In Rio Properties, the Ninth Circuit offered a detailed analysis of service of process under

4 Rule 4(f):
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By all indications, court-ordered service under Rule 4(f)(3) is a favored as service
available under Rule 4(f)(1) and Rule 4(f)(2). Indeed, Rule 4(f)(3) is one of three
separately numbered subsections in Rule 4(f), and each subsection is separated
from the one previous merely by the simple conjunction “or.” Rule 4(f)(3) is not
subsumed within or in any way dominated by Rule 4(f)’s other subsections; it
stands independently, on equal footing. Moreover, no language in Rules 4(f)(1) or
4(f)(2) indicate their primacy, and certainly Rule 4(f)(3) includes no qualifiers or
limitations which indicate its availability only after attempting service of process
by other means.
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Thus, examining the language and structure of Rule 4(f) and the accompanying
advisory committee notes, we are left with the inevitable conclusion that service of
process under Rule 4(f)(3) is neither a “last resort” nor “extraordinary relief.” It is
merely one means among several which enables service of process on an
international defendant.
Rio Properties, 284 F.3d at 1015. (citations omitted).

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No matter the method of service of process selected, such process must satisfy the
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constitutional requirement of due process. “To meet this requirement, the method of service

18 crafted by the district court must be ‘reasonably calculated, under all the circumstances, to apprise
19 interested parties of the pendency of the action and afford them an opportunity to present their
20 objections.” Rio Properties, 284 F.3d at 1016. A number of Courts have held that alternate
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forms of service pursuant to Rule 4(f)(3), including email service, are appropriate and may be the
only means of effective service of process “when faced with an international e-business scofflaw,

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playing hide-and-seek with the federal court, email may be the only means of effecting service of
process.” Rio Properties, 284 F.3d at 1018. See also Williams-Sonoma, Inc. v. FriendFinder,

26 2007 WL 4973848 (N.D. Cal. 2007) (Decl. of Fuisz at ¶8 (Exhibit G)). Plaintiff submits that
27 allowing email service in the present case is appropriate and comports with constitutional notions
EX

28

BANIE & ISHIMOTO
LLP

-6EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVAL ACTION NO. 5:10-CV-03713-JF PVT

1 of due process, particularly given the Defendant’s decision to conduct their activity based on
2 Internet anonymity.
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Here, service of process by email on Defendant will satisfy due process by apprising him

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of the action and giving him the opportunity to answer Plaintiff’s claims. As set forth in the
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Declarations of John Fuisz and Al Duncan, Defendant communicated with YouTube to file a

7 counter-designation and provided an address and phone number that are not valid. The Defendant
8 has communicated bywith email. Email service on the Defendant is appropriate and
9 constitutionally acceptable in a case such as this, where LJBC is unable to personally serve the
10 Defendant at a physical address and has proven that email is the most effective means for
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providing the defendant notice of the litigation. See Rio Properties, 284 F.3d at 1017 (“[N]ot

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only that service of process by email was proper – that is, reasonably calculated to apprise [the
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defendant] of the pendency of the action and afford it an opportunity to respond – but in this case,

15 it was the methods of service most likely to reach [the defendant].”). See also Popular
16 Enterprises, 225 F.R.D. at 562 (Decl. of Fuisz at ¶7 (Exhibit F))(“Under the facts and
17 circumstances presented here, Rule 4(f)(3) clearly authorizes the court to direct service upon
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defendant by email. The rule is expressly designed to provide courts with broad flexibility in
tailoring methods of service to meet the needs of particularly difficult cases. Such flexibility

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necessarily includes the utilization of modern communication technologies to effect service when
warranted by the facts.”).

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B.

Email Service is Not Prohibited by International Agreement

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As set forth in the Declarations of Al Duncan and John R Fuisz, prior to the filing of this

25 application, LJBC diligently investigated the Defendant’s address, without success. Thus, as a
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result of Defendant’s own effort to conceal his location, LJBC is unable to determine Defendant’s

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EX

28

BANIE & ISHIMOTO
LLP

-7EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVAL ACTION NO. 5:10-CV-03713-JF PVT

1 physical whereabouts. Based on Defendant’s counter-designation, good cause exists for believing
2 that Defendant resides in Canada.
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The United States and Canada are both signatories to the Hague Convention on the

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Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters (the
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“Convention”) Decl. of Fuisz at ¶12. “Compliance with the Convention is mandatory in all cases

7 to which it applies.” Volkswagonwerk AG v. Schlunk, 486 U.S. 694, 705 (1988). However,
8 according to Article 1 of the Convention, the “Hague Convention does not apply in cases where
9 the address of the foreign party to be served in unknown. 20 U.S.T. 361 (U.S.T. 1969).” BP
10 Products of North America, Inc. v. Dagra. 236 F.R.D. 270, 271 (E.D. Va. 2006) (Decl. of Fuisz at
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¶9 (Exhibit H)); Popular Enterprises, 225 F.R.D. at 562 (Decl. of Fuisz at ¶7 (Exhibit F)). As

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the address of the Defendant is not known, LJBC respectfully submits that the Convention does
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not apply in this case.
Email service has been previously used with Canadian defendants. In MPS IP Services

16 Corp. v. Modis Communications, Inc., 2007 WL 723841 (M.D. Fla. 2007)(Dkt. 11) (Decl. of
17 Fuisz at ¶10 (Exhibit I)), the Court approved email service to a defendant located in Canada.
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Regardless, though the Convention does not expressly authorize email service, the Convention
does not preclude it either, and thus, is no bar to the court-directed email service under Rule

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4(f)(3). In fact, U.S. Courts have routinely authorized international service and email service
notwithstanding the applicability of the Convention. See, e.g. Brockmeyer v. May, 383 F.3d 798,

th
23 800 (9 Cir. 2004)(service of process by international mail); Nanya Technology Corp. v. Fujitsu

24 Ltd., 2007 WL 269087 (D. Guam 2007)(Decl. of Fuisz at ¶11 (Exhibit J))(email service).
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EX

28

BANIE & ISHIMOTO
LLP

-8EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVAL ACTION NO. 5:10-CV-03713-JF PVT

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C.

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The Ninth Circuit has stated that “as long as court-directed and not prohibited by an

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Email Service is Not Prohibited by International Law

international agreement, service of process under Rule 4(f)(3) may be accomplished in

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contravention of the laws of the foreign country.” Rio Properties, 284 F.3d at 1014. In any case,
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Canada does not appear to prohibit email service. In MPS IP Services, 2007 WL 723841, the

7 Court noted that at least British Columbia Supreme Court Rule 12(1) allows for substitute service.
8 (Decl. of Fuisz at ¶10 (Exhibit I)).

As set forth in the Ontario Rules of Civil Procedure, Rule

9 16.01(4)(b)(ii) provides for alternate service. 1
10 V.
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CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Court grant the present

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Ex Parte Application to Serve the Summons and Complaint upon Defendant Abdalla Saleh by
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email at the address [e-mail].
Dated: September 27, 2010

The Fuisz Law Firm

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_/s/ John R. Fuisz_____________________
John R. Fuisz (pro hac vice)

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Banie & Ishimoto LLP

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_/s/ Jennifer Ishimoto_________________
Jennifer Ishimoto (SBN 211845)

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Attorneys for Plaintiff
Libyan Jamahiriya Broadcasting Corporation

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http://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.html

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EX

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BANIE & ISHIMOTO
LLP

-9EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVAL ACTION NO. 5:10-CV-03713-JF PVT

1

UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Libyan Jamahiriya Broadcasting
Corporation,

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Civil Action No. 5:10-CV-03713-JF PVT

Plaintiff,

[PROPOSED] ORDER

vs.
Abdalla Saleh,

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Defendant.

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WHEREAS Plaintiff Libyan Jamahiriya Broadcasting Corporation (“LJBC”) filed its Ex
Parte Application for Order Authorizing Alternate Service of Process on Defendants Pursuant to

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Federal Rules of Civil Procedure 4(f)(3) (“Plaintiff’s Application”);
WHEREAS Plaintiff has shown good cause why leave should be granted allowing service

15 of the Summons and Complaint in this matter upon Defendant Abdalla Saleh via email;
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The Court, having read and considered the pleadings, declarations and exhibits on file in

17 this matter and having reviewed such evidence as was presented in regards to Plaintiff’s
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Application, hereby grants Plaintiff’s Application and grants leave to Plaintiff to serve the

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Summons and Complaint upon Defendant by email at the electronic mail address
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[e-mail].

22 IT IS SO ORDERED
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24 DATED:__________

_________________________________

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UNITED STATES DISTRICT JUDGE

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EX

28

BANIE & ISHIMOTO
LLP

-10EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVAL ACTION NO. 5:10-CV-03713-JF PVT