Libyan Jamahiriya Broadcasting Corporation v. Saleh

Filing 15

Ex Parte Application for Application Authorizing Alternative Service of Process Or Entry of Default filed by Libyan Jamahiriya Broadcasting Corporation. (Attachments: # 1 Affidavit of John Fuisz)(Ishimoto, Jennifer) (Filed on 11/17/2010)

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 FOR APPLICATION FOR ORDER
AUTHORIZING ALTERNATE SERVICE OF
PROCESS ON DEFENDANT PURSUANT TO
F.R.C.P. 4(f)(3) BY PUBLICATION OR IN THE
ALTERNATIVE ENTRY OF DEFAULT;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF
[Filed concurrently the Declaration of John Fuisz
as well as an [proposed] Order]

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EX PARTE APPLICATION

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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)
CIVIL 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
3 via publication, pursuant to Federal Rule of Civil Procedure 4(f)(3), or in the alternative for
4 default based on the previous emailed Complaints and summons and Defendant Saleh‟s
5 agreement to accept service.
6

On August 10, 2010, Defendant Saleh submitted a counter-designation under 17 U.S.C.

7 §512 in which he swore under oath that he “will accept service of process from claimant.” On
8 August 20, 2010 this lawsuit was filed and Defendant Saleh was provided with an email to
9 [e-mail] with a copy of the Complaint. Dkt. No. 12, Fuisz Dec. at 5 (Exhibit C).
10 On September 27, 2010, Plaintiff filed an Ex Parte for Application of Order Authorizing
11 Alternate Service of Process. Dkt. No. 12. On September 27, 2010, counsel sent an email to
12 [e-mail] containing the Ex Parte motion and all exhibits. Fuisz Dec. at ¶2. On
13 October 14, 2010, this Court granted an Order authorizing service by email. On October 14,
14 2010, both Fuisz and Ishimoto attempted to serve [e-mail] by email with the
15 Complaint and Summons, but the emails were returned as being undeliverable because the email
16 account had been deactivated during the intervening period. Fuisz Dec. ¶3.
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Despite having filed a counter-designation under oath agreeing to the jurisdiction of this

18 Court and to agreeing to accept service, Defendant Saleh appears to be actively evading service of
19 process. Accordingly, LJBC requests permission to perfect service by way of publication or in
20 the alternative, for an order holding Defendant Saleh in default based on his counter-designation
21 under 17 U.S.C. §512 and the laws of Ontario that permit service to be dispensed with under
22 appropriate circumstances.
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Such application is made upon the grounds that LJBC has not been able to locate

24 Defendant despite reasonable diligence, because defendant is purposefully concealing his
25 location, and thus LJBC has been unable to serve the defendant in any other manner as allowed
26 under the Federal Rules and/or the California Code of Civil Procedure. As shown by the
27 Complaint a cause of action for damages exists against the Defendant.
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BANIE & ISHIMOTO
LLP

-2EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVIL ACTION NO. 5:10-CV-03713-JF PVT

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Such application is based upon this Application, the Memorandum of Points and

2 Authorities hereto, the Declaration of John R. Fuisz, and exhibits thereto, filed concurrently
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herewith, and the complete files and records of this action, and such other matters as we may call
to the Court‟s attention at or before the time of the hearing.

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Dated: November 17, 2010

The Fuisz Law Firm

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/s/John R. Fuisz______________
John R. Fuisz (pro Hac)

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Banie & Ishimoto LLP

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_/s/ Jennifer Ishimoto_____________________
Jennifer Ishimoto (SBN 211845)
Attorneys for Plaintiff
Libyan Jamahiriya Broadcasting Corporation

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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)
CIVIL ACTION NO. 5:10-CV-03713-JF PVT

MEMORANDUM OF POINTS AND AUTHORITIES

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2 I.

NOTICE

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As explained in detail below and in the previously filed Ex Parte Application for an Order

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

INTRODUCTION

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Plaintiff Libyan Jamahiriya Broadcasting Corporation (“LJBC”) is suing Defendant

16 Abdalla Saleh, for copyright infringement (Counts 1-4). Defendant agreed under oath to accept
17 service but has been actively evading service by providing an incorrect address and by canceling
18 his email address after this Court authorized service by email. Pursuant to Federal Rule of Civil
19 Procedure 4(f)(3), Plaintiff requests an order allowing service of process on the defendant by
20 publication. Publication is appropriate and necessary in this case because defendant (1) provided
21 YouTube LLC an incorrect address, (2) relied on electronic mail for communication and (3)
22 terminated his email account prior to this Court authorizing service by email. Further, Defendant
23 provided a counter-designation under 17 U.S.C. §512 in which he swore under oath that he “will
24 accept service of process from claimant.”
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Notwithstanding the Defendant‟s concealment of his physical location, Plaintiff still has

26 the ability to provide Defendant with notice of Plaintiff‟s claims against him.
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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)
CIVIL ACTION NO. 5:10-CV-03713-JF PVT

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Absent the ability to serve the Defendant by publication, Plaintiff will almost certainly be

2 left without the ability to pursue a remedy absent this Court holding Defendant in default.
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II.

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

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videos that contain the un-authorized use and un-authorized alteration, including removal of

7 names and authors, of the copyrighted materials.
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Plaintiff LJBC provided YouTube LLC with Notification under the United States Digital

9 Millennium Copyright Act (“DMCA”), 17 U.S.C. §512 that an individual with the user name
10 “abdoellibie” posted materials that infringed upon one or more LJBC copyrights. Dkt. No. 12,
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Declaration of John R Fuisz at ¶2 (Exhibit A).
On August 10, 2010, Defendant, “abdoellibie,” using the email address

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[e-mail] filed a counter-designation. In the counter-designation, “abdoellibie”

15 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

20 Dkt. 12, Decl. of Fuisz at ¶3 (Exhibit B). In addition, Defendant stated:
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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.)

24 Dkt. 12, Decl. of Fuisz at ¶3 (Exhibit B).
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YouTube LLC is located at 901 Cherry Ave, San Bruno, California 94066. Dkt. 12, Decl.
of Fuisz at ¶4.

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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)
CIVIL ACTION NO. 5:10-CV-03713-JF PVT

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

2 this lawsuit was provided to YouTube LLC via fax and email (fax [phone] and email
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[e-mail]) and by email to Abdalla Saleh (email [e-mail]). Dkt.

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No. 12, Decl. of Fuisz at ¶5 (Exhibit C).
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On August 21, 2010, the Civil Cover Sheet, Complaint, Summons, Certification of

7 Interest, Application for Pro Hac Vice, Order Setting Initial Case management Conference and
8 ADR Deadlines, Civil Standing Orders for Magistrate Judge Joseph C. Spero, Notice of Rule
9 Discontinuing Mail Service, Notice of Assignment of Case and Order of Chief Judge In Re:
10 Electronic Filing was sent by U.S. Post Office Global Express to Abdalla Saleh, 20 Shallmar Bvd,
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Toronto ON, Canada. Dkt. No. 12, Decl. of Fuisz at ¶6 (Exhibit D). 20 Shallmar is an apartment

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building and requires an apartment number for delivery such that the August 21, 2010 package
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has not been able to be delivered. Dkt. No. 12, Decl. of Fuisz at ¶6 (Exhibit E).
Private Investigator, Al Duncan, was retained to find a proper address for Defendant. As

16 of September 13, 2010, Addalla Saleh does not have an Ontario driver‟s license or phone records
17 under his name at 20 Shallmar Blvd. Defendant has no property records or liens registered under
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his name. All available reporting services to the Private Investigator reveal no information under
Defendant‟s name. Dkt. No. 12,Declaration of Al Duncan.

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On or about September 14, 2010, Plaintiff noticed that Defendant has begun to remove the
accused videos. For example, the posting on blip.tv identified at Paragraph 11 of the Complaint

23 has been removed by the poster. It is unknown whether the Defendant is keeping evidence or
24 destroying the evidence in this case or whether Defendant will re-post the infringing material
25 while continuing to evade this Court.
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BANIE & ISHIMOTO
LLP

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

1

On September 27, 2010, Plaintiff filed an Ex Parte for Application of Order Authorizing

2 Alternate Service of Process. Dkt. No. 12.
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On September 27, 2010, counsel sent an email to [e-mail] containing the

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Ex Parte motion and all exhibits. Fuisz Dec. at ¶2.
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On October 14, 2010, this Court issued an Order granting Plaintiff‟s motion,authorizing

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7 service by email. Dkt. No. 14.
On October 14, 2010, both Fuisz and Ishimoto attempted to serve [e-mail]

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9 by email with the Complaint and Summons but the emails were returned as being undeliverable.
10 Fuisz Dec. at ¶3.
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III.

ARGUMENT

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A.

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

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

16 be made on an individual in a foreign country by any means not prohibited by international
17 agreement as the Court directs. Rio Properties Inc. v. Rio International Interlink, 284 F.3d 1007,
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1014 (9th Cir. 2002). “By its plain language, service under Rule 4(f)(3) must be (1) directed by
the Court; and (2) not prohibited by international agreement. No other limitations are evident

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from the text.” Popular Enters., LLC v. Webcom Media Group, Inc., 225 F.R.D. 560, 561 (E.D.
Tenn. 2004)(Decl. of Fuisz at ¶7 (Exhibit F)). Rule 4 does not require a party to attempt service

23 of process by those methods enumerated in 4(f) subsections (1) and (2) before petitioning for
24 alternative relief under Rule 4(f)(3). Rio Properties Inc., 284 F.3d at 1015.
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BANIE & ISHIMOTO
LLP

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

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In Rio Properties, the Ninth Circuit offered a detailed analysis of service of process under

2 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.
***
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.

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13 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

15 constitutional requirement of due process. “To meet this requirement, the method of service
16 crafter by the district court must be „reasonably calculated, under all the circumstances, to apprise
17 interested parties of the pendency of the action and afford them an opportunity to present their
18 objections.” Rio Properties, 284 F.3d at 1016.
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In the instant case, service of process by publication on Defendant will satisfy due process

20 by apprising him of the action and giving him the opportunity to answer Plaintiff‟s claims. As
21 previously briefed and ruled upon by this Court, email service was permitted to apprise Defendant
22 of this suit. After receiving notice of the Ex Parte Application, but prior to issuance of an Order
23 by the Court, Defendant‟s email address was disabled.
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BANIE & ISHIMOTO
LLP

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

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B.

Service By Publication is Not Prohibited by International Agreement

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As a result of Defendant‟s own effort to conceal his location, LJBC is unable to determine

3 Defendant‟s physical whereabouts. Based on Defendant‟s counter-designation, good cause exists
4 for believing that Defendant resides in Canada.
As previous briefed in Dkt. No. 12, the United States and Canada are both signatories to

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6 the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil
7 and Commercial Matters (the “Convention”). “Compliance with the Convention is mandatory in
8 all cases to which it applies.” Volkswagonwerk AG v. Schlunk, 486 U.S. 694, 705 (1988).
9 However, according to Article 1 of the Convention, the “Hague Convention does not apply in
10 cases where the address of the foreign party to be served in unknown. 20 U.S.T. 361 (U.S.T.
11 1969).” BP Products of North America, Inc. v. Dagra. 236 F.R.D. 270, 271 (E.D. Va. 2006);
12 Popular Enterprises, 225 F.R.D. at 562. As the address of the Defendant is not known, LJBC
13 respectfully submits that the Convention does not apply in this case.
The Ninth Circuit has stated that “as long as court-directed and not prohibited by an

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15 international agreement, service of process under Rule 4(f)(3) may be accomplished in
16 contravention of the laws of the foreign country.” Rio Properties, 284 F.3d at 1014.
In any case, Canada does not appear to prohibit service by publication and permits the use

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18 of alternate methods of service and/or dispensing with service altogether. As set forth in the
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19 Ontario Rules of Civil Procedure, Rule 16.01(4)(b)(ii) provides for alternate service. Moreover,
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20 Rule 14.04 permits that a Court order substitute service or dispense with service altogether.

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16.04 (1) Where it appears to the court that it is impractical for any reason to
effect prompt service of an originating process or any other document required to
be served personally or by an alternative to personal service under these rules, the
court may make an order for substituted service or, where necessary in the interest
of justice, may dispense with service.

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

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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)
CIVIL ACTION NO. 5:10-CV-03713-JF PVT

Canadian case law appears to indicate that the Plaintiff must satisfy the Court that the

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2 proposed method of service will have some likelihood or a reasonable possibility of bringing the
3 action to the defendant. As set forth in Laframboise v. Woodward, 2002 Can Lii 49471 (ON
4 S.C.), the Court discussed the appropriateness of substitute service by way of publication in a
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5 newspaper (two consecutive editions). Therefore, Plaintiff seeks permission to perfect service

6 through publication in a Toronto newspaper or a newspaper local to YouTube, which is a
7 jurisdiction that Defendant subjected himself to under oath.
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C.

Alternative Order of Default

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The instant case is complicated by Defendant‟s use of an incomplete address in the 17

10 U.S.C. §512 counter-designation. At this point, it is unknown if the address was incomplete or if
11 it was fake. All that is known is that the email address worked and was cut-off before this Court
12 could authorize service by email. Defendant did state pursuant to the requirements of §512 that:
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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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17 Yet, Defendant has not accepted service. If the defendant‟s whereabouts are unknown, Canadian
18 law permits the dispensing with service of process upon showing that reasonable steps have been
19 taken to locate the party to personally serve him.
Federal Rule of Civil Procedure, Rule 4(f)(2)(A) permits service “as prescribed by the

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21 foreign country‟s law for service in that country in an action in its courts of general jurisdiction.”
22 Rule 16.04 of the Ontario Rules of Civil Procedure as noted above permits “where necessary in
23 the interest of justice, may dispense with service.” If this Court determines that publication is
24 unlikely to result in their being some likelihood or a reasonable possibility that Defendant will
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http://www.canlii.org/en/on/onsc/doc/2002/2002canlii49471/2002canlii49471.pdf

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BANIE & ISHIMOTO
LLP

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

1 receive effective service, Plaintiff requests that the Court follow Rule 16.04 and dispense with
2 service or process and hold Defendant in default.
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In the instant case, Defendant was provided with the Complaint on two occasions by

4 email. Defendant was not provided with a copy of the summons, but the evidence appears to
5 indicate that Defendant knows of this action and is attempting to avoid it.
6 V.

CONCLUSION

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For the foregoing reasons, Plaintiff respectfully requests that this Court grant the present

8 Ex Parte Application to Serve the Summons and Complaint upon Defendant Abdalla Saleh by
9 publication in a Toronto newspaper and/or local newspaper as directed by the Court. In the
10 alternative, Plaintiff requests that this Court hold Defendant in default and enter judgment
11 accordingly.
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Dated: November 17, 2010

The Fuisz Law Firm

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/s/John R. Fuisz______________
John R. Fuisz (pro Hac)

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Banie & Ishimoto LLP

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_/s/ Jennifer Ishimoto_____________________
Jennifer Ishimoto (SBN 211845)
Attorneys for Plaintiff
Libyan Jamahiriya Broadcasting Corporation

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BANIE & ISHIMOTO
LLP

-11EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVIL 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”);

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WHEREAS Plaintiff has shown good cause why leave should be granted;

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The Court, having read and considered the pleadings, declarations and exhibits on file in

16 this matter and having reviewed such evidence as was presented in regards to Plaintiff‟s
17 Application, hereby:
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GRANTS / DENIES Plaintiff‟s Application and grants leave to Plaintiff to serve the

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Summons and Complaint upon Defendant by publication in an appropriate publication in
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Toronto, Canada; and/or
GRANTS / DENIES Plaintiff‟s request to hold Defendant in default.

23 IT IS SO ORDERED
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25 DATED:__________
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_________________________________
JEREMY FOGEL
UNITED STATES DISTRICT JUDGE

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BANIE & ISHIMOTO
LLP

-12EX PARTE APPLICATION FOR ORDER AUTHORIZING ALTERNATE SERVICE
OF PROCESS ON DEFENPENDANT PURSUANT TO F.R.C.P. 4(f)(3)
CIVIL ACTION NO. 5:10-CV-03713-JF PVT