Automattic Inc. et al v. Chatwal

Filing 21

ORDER by Magistrate Judge Howard R. Lloyd denying without prejudice 17 Motion to Authorize Alternative Service of Process on Defendant Narendra Chatwal (hrllc1, COURT STAFF) (Filed on 6/17/2014)

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*E-Filed: June 17, 2014*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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AUTOMATTIC INC. and RETRACTION
WATCH, LLC,

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Plaintiffs,
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v.

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NARENDRA CHATWAL,

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No. C13-05411 HRL
ORDER DENYING MOTION TO
AUTHORIZE ALTERNATIVE
SERVICE OF PROCESS

Defendant.

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[Re: Docket No. 17]

____________________________________/

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Automattic, Inc. (“Automattic”) and Retraction Watch, LLC (“Retraction Watch”) sue

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Narendra Chatwal for allegedly misrepresenting that material is infringing copyright pursuant to 17

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U.S.C. § 512(f). Plaintiffs allege that Chatwal copied ten articles from the Automattic-hosted

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Retraction Watch blog, posted the articles to his own website NewsBulet.in, then submitted a

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takedown notice to Automattic claiming that Retraction Watch had copied the articles from him. As

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required by Automattic’s takedown notice form, Chatwal provided contact information, including a

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physical address in India and an email address, [e-mail]. Plaintiffs’ initial

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attempts to serve Chatwal were unsuccessful because the Indian address was defective. They now

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request an order allowing them to serve him by email and by posting notice on the Retraction Watch

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blog.

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Rule 4(f)(3) provides for service of an individual in a foreign country “by other means not

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prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). “Even if facially

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permitted by Rule 4(f)(3), a method of service of process must also comport with constitutional

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notions of due process. To meet this requirement, the method of service crafted by the district court

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must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the

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pendency of the action and afford them an opportunity to present their objections.’” Rio Properties,

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Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002) (quoting Mullane v. Cent. Hanover

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Bank & Trust Co., 339 U.S. 306, 314 (1950)).

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At the hearing, counsel conceded that service by email was unlikely to be successful given

For the Northern District of California

United States District Court

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that the physical address Chatwal provided at the same time was defective and that the newsbulet.in

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website no longer exists. Nevertheless, Plaintiffs’ maintain that service by website publication is

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reasonably calculated to apprise Chatwal of the litigation because he has visited the Retraction

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Watch blog in the past, and the substantial effort put into his scheme demonstrates a great interest in

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the website such that he is likely to return in the future.

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Before Plaintiffs resort to service by website publication, the Court thinks they should first

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make some effort to locate Chatwal, as is required for the analogous method of service by

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newspaper publication. See AF Holdings LLC v. Pescadeso, No. 3:12-cv-02404-SC (JSC), 2013

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WL 394190, at *1 (N.D. Cal. Jan. 30, 2013) (“Before allowing a plaintiff to resort to service by

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publication, the courts necessarily require him to show exhaustive attempts to locate the defendant,

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for it is generally recognized that service by publication rarely results in actual notice.” (quoting

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Watts v. Crawford, 10 Cal. 4th 743, 749 n.5 (1995))). For example, to set up NewsBulet.in,

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Chatwal may have provided a domain registrar or other similar entity with personally identifiable

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information, which Plaintiffs could use to locate him. The Court is amenable to ordering early

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discovery to aid Plaintiffs in retrieving such information and otherwise attempting to locate

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Chatwal, should they move for such relief. Then, if Plaintiffs’ reasonably diligent efforts to locate

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him prove unsuccessful, the Court may revisit the issue of service by website publication.

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Accordingly, Plaintiffs’ motion to authorize alternative service of process is DENIED without

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prejudice.

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IT IS SO ORDERED.
Dated: June 17, 2014
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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C13-05411 HRL Notice will be electronically mailed to:

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Joseph Charles Gratz [e-mail], [e-mail],
[e-mail]

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Michael Aaron Feldman

[e-mail]

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Michael Henry Page [e-mail], [e-mail],
[e-mail]
Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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For the Northern District of California

United States District Court

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