Cloudclinic LLC v. Therapetic Solutions, Inc. et al

Filing 13

ORDER Granting 9 Motion to Complete Service on Defendant Srauski Through Service by Email. Signed by Judge Janis L. Sammartino on 10/25/2017. (mpl)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CLOUDCLINIC LLC, 11 12 13 Case No.: 17-CV-1293-JLS (NLS) ORDER GRANTING MOTION TO COMPLETE SERVICE ON DEFENDANT STRAUSKI THROUGH SERVICE BY EMAIL Plaintiff, v. THERAPETIC SOLUTIONS, INC., et al., (ECF No. 9) 14 15 Defendants. 16 17 Presently before the Court is Plaintiff CloudClinic LLC’s Motion for Permission to 18 Complete Any Remaining Service by Email on Defendant Richard Strauski, (“MTN,” ECF 19 No. 9). No opposition to the Motion has been filed. 20 BACKGROUND 21 Plaintiff brought suit for cybersquatting, registered mark trademark infringement, 22 unfair competition, common law trademark infringement, and unfair competition against 23 Defendants TheraPetic Solutions, Inc., Richard Strauski, and Deirdre White. (ECF No. 1, 24 at 2.) Plaintiff brings the current Motion regarding service on Defendant Richard Strauski 25 (“Strauski”), who has a known email address and no known physical address. (MTN 2.) 26 Plaintiff states Defendant TheraPetic informed Plaintiff that Strauski now resides in New 27 York, but Plaintiff is unable to locate Strauski’s New York address. (MTN 3–4.) Plaintiff 28 states it has been provided with an address in Canada for Strauski’s parents and with an 1 17-CV-1293-JLS (NLS) 1 address in Washington D.C. for Defendant TheraPetic. (MTN 3; “Wagner Decl.,” ECF 2 No. 9-2, at ¶ 5.) Plaintiff states it has served the Complaint by mail at both of these 3 addresses. (Id.) Plaintiff also attempted personal service on Strauski at the Washington 4 D.C. address but was not successful. (See ECF No. 9-4.) Plaintiff alleges Strauski operates 5 websites on behalf of Defendant Therapetic and registered himself with the Internet 6 Corporation for Assigned Names and Numbers (“ICANN”) as the contact person at 7 TheraPetic for the company’s domain names. (Id. at 3.) Strauski’s email address, 8, is listed on all of the domain name registrations. (Id. at 4; see also 9 ECF No. 9-5.) 10 Plaintiff claims service by email is reasonably calculated to give notice of the lawsuit 11 to Strauski because Ken Gaughan, TheraPetic’s principal, informed Plaintiff he has been 12 in contact with Strauski by email in response to being served with the Complaint. (Id. at 13 5; Wagner Decl. at ¶ 6.) Further, Plaintiff’s counsel attests that when he emailed Defendant 14 Strauski, he received no return or rejection notices. (Wagner Decl. ¶ 6.) 15 LEGAL STANDARD 16 Pursuant to Federal Rule of Civil Procedure 4(e), “an individual may be served in a 17 judicial district of the United States by . . . following state law for serving a summons in 18 an action brought in courts of general jurisdiction in the state where the district court is 19 located or where service is made.” Fed. R. Civ. P. 4(e).1 Under California law, a court 20 “may direct that summons be served in a manner which is reasonably calculated to give 21 actual notice to the party to be served and that proof of such service be made as prescribed 22 by the court.” Cal. Civil Code § 413.30. To comport with due process, the method of 23 service must be “reasonably calculated, under all the circumstances, to apprise interested 24 parties of the pendency of the action and afford them an opportunity to present their 25 26 27 28 1 Although Plaintiff discusses the unsettled nature of Canadian law on the issue of service by mail in its Motion (MTN 2), Plaintiff’s Motion and the attached Declaration of Ben Wagner indicate Strauski is currently living in New York, not in Canada. Rule 4(e), which governs service of an individual living domestically, therefore applies in this matter. 2 17-CV-1293-JLS (NLS) 1 objections.” Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002) 2 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). 3 ANALYSIS 4 Plaintiff argues the Court should grant its Motion for Electronic Service because 5 Plaintiff has acted diligently to notify Strauski of this case and because service through 6 email is reasonably calculated to provide notice to Strauski. (MTN 2.) 7 Courts have authorized service of process by email on domestic litigants. In 8 Facebook, Inc. v. Banana Ads, LLC, the court authorized service by email on domestic 9 defendants. No. C-11-3619 YGR, 2102 WL 1038752, *3 (N.D. Cal. Mar. 27, 2012). The 10 defendants were engaged in online-based businesses and “rel[ied] on email as a means of 11 communication.” Id. The plaintiff unsuccessfully attempted to “locate and contact [the 12 defendants] by postal mail and telephone.” Id. Under these circumstances, email service 13 was “the best method for providing actual notice to [the defendants].” Id. 14 In Balsam v. Angeles Technology Inc., the court similarly authorized service by 15 email. No. C 06-04114 JF (HRL), 2007 WL 2070297, *4 (N.D. Cal. July 17, 2007). There, 16 the plaintiff “attempted to serve [the defendants] through traditional methods.” Id. at *3. 17 When this was unsuccessful, plaintiff sought to serve the defendants through email 18 addresses that the defendants “provided to the domain name registrar and to . . . individuals 19 who sign[ed] up for the [defendants’] website’s services.” Id. The court held the 20 defendants “should . . . expect to be contacted at the addresses they provided to the domain 21 name registrar” and therefore email service was reasonably calculated to give actual notice. 22 Id. 23 The Court finds service by email is reasonably calculated to give Strauski notice of 24 the pending case. 25 registrations and should expect to be contacted through this email address. The Court 26 GRANTS Plaintiff’s Motion and permits Plaintiff to use the email address 27 to serve process on Strauski. Strauski provided his email address on all of his domain name 28 3 17-CV-1293-JLS (NLS) 1 Plaintiff also requests the Court extend the service deadline. (MTN 2.) Pursuant to 2 Rule 4(m), a defendant must be served within 90 days after the complaint is filed, but if 3 the plaintiff shows good cause for its failure to serve, the court must extend the time for 4 service for an appropriate period. Fed. R. Civ. P. 4(m). Good cause appearing, the Court 5 GRANTS Plaintiff’s Motion. Plaintiff shall serve Strauski within 5 days of the date of this 6 Order. 7 CONCLUSION 8 The Court GRANTS Plaintiff’s Motion for Permission to Complete Any Remaining 9 Service by Email on Defendant Richard Strauski. Plaintiff may use the email address 10 to serve process on Strauski. Accordingly, the hearing set for this 11 Motion on November 2, 2017 at 1:30 p.m. is VACATED. 12 13 IT IS SO ORDERED. Dated: October 25, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 17-CV-1293-JLS (NLS)

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