Farm Bureau General Insurance Company of Michigan v. SMART BALANCE WHEEL et al

Filing 18

[SUPPLEMENTAL] ORDER GRANTING Plaintiff's 10 MOTION to Amend Complaint and for Alternate Service filed by Farm Bureau General Insurance Company of Michigan--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FARM BUREAU GENERAL
INSURANCE COMPANY OF
MICHIGAN as subrogee of
Mohanad Isso,

Case No. 2:16-CV-14286
District Judge Paul D. Borman
Magistrate Judge Anthony P. Patti

Plaintiff,
v.
SMART BALANCE WHEELS, et
al.,
Defendants.
___________________________________/
ORDER GRANTING PLAINTIFF’S MOTION FOR ALTERNATE
SERVICE ON JOHN DOE DEFENDANTS 1-5 IN PLAINTIFF’S FIRST
AMENDED COMPLAINT (DE 10)
I.

Background
A. Factual Background
The instant lawsuit arises out of a September 24, 2016 house fire that started

in the basement of Mohanad Isso’s house. Plaintiff Farm Bureau General
Insurance Company of Michigan (“Farm Bureau”) insured Mr. Isso’s house and
paid his insurance claim, thereby becoming subrogated to his rights. According to
the complaint, an investigation revealed that the fire was caused by a toy known as
a hoverboard, which was located in Mr. Isso’s basement. (DE 1.) Mr. Isso
reported to Farm Bureau that he purchased the “Smart Balance Wheel” brand

hoverboard off of eBay approximately one or two years prior to the fire, and that
while he does not have records of the transaction, he did locate the user manual for
the hoverboard. However, the user manual did not provide a manufacturer’s name
or address. (DE 10 at 11.) Farm Bureau seeks to bring this lawsuit against those
Defendants who designed, manufactured and sold the “Smart Balance Wheel”
brand hoverboard and its battery.
B. Procedural History
Farm Bureau searched the Internet to find the names or corporate
headquarters for the companies that manufacture, distribute or sell the “Smart
Balance Wheel” brand hoverboard, and located several websites and Facebook
pages listing email addresses. However, Farm Bureau has had difficulty locating
the corporate name(s) or physical contact information of the manufacturer(s). On
July 21, 2017, Farm Bureau filed a motion to amend its complaint and for alternate
service to name the defendants that appear to be affiliated with the Smart Balance
Wheel brand hoverboard, and for an order allowing Farm Bureau to serve process
by alternate means: by email to the email addresses listed on the company websites
and by first-class mail to the “billing address” identified on one of the websites.
(DE 10.) This motion was referred to me on August 1, 2017. (DE 11.)
On October 2, 2017, the Court entered an Order granting Farm Bureau’s
motion to amend the complaint and granting in part and denying in part the motion

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for alternate service. (DE 13.) The Court found that Farm Bureau established that
Defendants conduct business on the internet and via email, and that service by
email would not violate any international agreement. However, the Court found
that Farm Bureau had not met its burden so show that the email addresses at issue
have been “sufficiently tested” to confirm they are valid and thus “reasonably
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.”
(Id. at 7-11 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950).) Accordingly, the Court ordered Farm Bureau to appear for an evidentiary
hearing to present evidence demonstrating that each of the email addresses it
requests to serve have been “sufficiently tested” and therefore are valid, and that
service will comport with constitutional notions of due process. (Id. at 11-12.)
C. The October 25, 2017 Evidentiary Hearing
On October 25, 2017, Farm Bureau’s counsel appeared for the evidentiary
hearing. He was placed under oath and presented testimony and evidence
identifying the proposed Defendants and the proposed contact information for each
Defendant, and regarding his efforts to demonstrate that the proposed email
addresses have been “sufficiently tested” and are valid. He established that each of
the proposed Defendants Farm Bureau seeks to serve via email do business on the
internet and through email, including making their products available for purchase

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online, and testified that the websites found do not provide the formal name of the
manufacturer(s) or provide the physical contact information for the
manufacturer(s). Farm Bureau’s counsel identified the specific email address(es)
associated with each proposed Defendant and further detailed his efforts to verify
that each of the email addresses at which he seeks to serve those Defendants is
valid, including dates emails were sent to each email address, and that emails
mailed to each of the email addresses in question were not returned as
undeliverable or did not “bounce back.” At the close of the hearing, Farm Bureau
was directed to: (1) file its Amended Complaint identifying all proposed
Defendants; (2) attempt to send emails to each of the email addresses at issue
again, but requesting a “delivery receipt” and “read receipt” for each; and (3)
conduct a “reverse lookup” for the telephone number identified on the
www.smartselfbalanceweheel.com/ website to attempt to obtain a physical address
for that Defendant.
D. Farm Bureau’s First Amended Complaint and Supplemental Brief
on its Request for Alternate Service
On November 2, 2017, Farm Bureau filed its First Amended Complaint
identifying the five Defendants it seeks leave to serve via alternate service,
including providing the domain name and associated email address for each John

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Doe Defendant. (DE 15.)1 Farm Bureau also filed a supplemental brief in support
of its motion for alternate service. (DE 17.) In that supplemental brief, Farm
Bureau identified the five Defendants in its First Amended Complaint that it
requests to serve via alternate service, and detailed the requested alternate means of
service for each Defendant. (Id. at 1-2.) Farm Bureau also attached counsel’s
second supplemental affidavit to its supplemental brief. (DE 17-1.) In that
affidavit, Farm Bureau’s counsel listed the specific email addresses contacted for
each Defendant, and explained that, in compliance with the direction of the Court,
he “turned on the ‘delivery receipt’ and ‘read receipt’ functions and sent emails to”
each of the four listed email addresses. (Id. ¶ 2.) For each of those test emails
sent, Farm Bureau’s counsel “received messages stating that the emails had been
delivered to those email addresses[,]” but “did not receive any ‘read’ receipts.”
(Id.)2 Counsel further “test[ed]” whether the “delivery receipt” function worked
properly by sending a test email to a similar, but not identical, email address. (Id.)
In response to that test email, counsel “received a message stating that it was NOT
delivered[,]” “indicat[ing] that the email addresses to which Farm Bureau asks to
serve process by email are currently receiving emails.” (Id.)
Farm Bureau also lists four additional named Defendants. However, it provides
physical addresses for those Defendants and will presumably serve those
Defendants via traditional means. (DE 15 at 4.)

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The Court takes judicial notice of the fact that “read” receipts require action by
the recipient, i.e., that the recipient must agree to verify receipt.

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II.

Motion for Alternate Service3
Farm Bureau requests permission to serve the five “John Doe” Defendants in

its First Amended Complaint as follows:
(1) John Doe 1, d/b/a Smart Balance Wheel, www.smart-balancewheel.com:
service by email to [e-mail].
(2) John Doe 2, d/b/a Miberi Tech, www.miberi.com: service by email to
[e-mail].
(3) John Doe 3, d/b/a Smart Balance Board,
www.smartselfbalancewheel.com: service by email to
[e-mail].
(4) John Doe 4, d/b/a Smart Balance Wheel,
www.smartwheelbalanceboard.com: service by email to
[e-mail] and by registered mail or some other method
by which some delivery confirmation signed by the addresses would be
produced to Sunlight(UK) Trading Limited, 32 BRIGHTON ROAD
INVCC CENTRE REDHILL SURREY RH1 5BX;4 and
(5) John Doe 5, d/b/a Storeshow: service by email to
[e-mail].
As this Court recognized in its prior Order, federal courts, including the
Eastern District of Michigan, have allowed service by email, particularly where the
party to be served conducts its business on the internet and through email, and
The Court refers to its October 12, 2017 Order granting in part and denying in
part Farm Bureau’s motion to amend complaint and for alternate service for a
discussion of the law governing motions for alternate service. (DE 13 at 4-7.)

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The Court provided in its prior Order that Farm Bureau may also attempt service
of process on this Defendant at the United Kingdom billing address by registered
mail or by some other method by which some delivery confirmation signed by the
addressee would be produced. (DE 13 at 13.)

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“when the movant demonstrates that the email address in question is valid.” (DE
13 at 7.) The Court further found that service by email would not violate any
international agreement. (Id. at 8-9.)
Here, Farm Bureau has established that the proposed John Doe Defendants
do business on the internet and through email, including making their products
available for purchase online, and that they do not identify the names or addresses
of their corporate headquarters or their resident agents on their websites. Farm
Bureau identified each John Doe Defendant in the First Amended Complaint, and
provided each Defendant’s website and email contact information. In Bose
Corporation v. Chen Qiang a/k/a Qi Qingjun d/b/a beatsstore.inc d/b/a
boseheadphones.biz, No. 13-11866 (WGY), 2013 WL 12137836 (D. Mass. Aug.
19, 2013), the Court similarly noted that:
It appears that Defendants have gone to great lengths to conceal
themselves from detection by using multiple false identities and
addresses associated with their operations and purposely-deceptive
contact information.
Id. at *2; see also Warner Bros. Entm’t Inc. v. John Doe 1 a/k/a Wang Wei d/b/a
Dvdsea.com, No. 14-CV-3492 (KPF), 2014 WL 12543818, at *2 (S.D.N.Y. May
29, 2014) (same). Both the Bose and Warner Bros. courts permitted the plaintiffs
in those cases to serve process on the John Doe defendants associated with the
domain names “by electronic mail at the unique email addresses used by the [John
Doe defendants] in conjunction with their [websites] and listed in the Order, which
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Plaintiffs have demonstrated will provide adequate notice to [John Doe defendants]
pursuant to Fed. R. Civ. P. 4.” See Warner Bros., 2014 WL 12543818, at *4; Bose,
2013 WL 12137836, at *4-5.
The Court now finds, following the October 25, 2017 evidentiary hearing
and second supplemental affidavit provided by Farm Bureau’s counsel, that service
by email on the five John Doe Defendants at the listed email addresses is
reasonably calculated to give those Defendants actual notice of the proceedings
and an opportunity to be heard, and thus comports with due process. See FKA
Distrib. Co. v. YISI Tech. Co., No. 17-cv-10226, 2017 WL 4129538, at *1 (E.D.
Mich. Sept. 19, 2017). Farm Bureau’s counsel has demonstrated that the email
addresses are “valid”—that each address has been “sufficiently tested”—in order
to comply with due process. See Lexmark Int’l, Inc. v. Ink Techs. Printer Supplies,
295 F.R.D. 259, 262 (S.D. Ohio 2013) (plaintiff “demonstrated that it has verified
that each of the email addresses at which it seeks to serve those Defendants is
valid, and that communication has occurred with a representative of the respective
Defendants at those email addresses).
Accordingly, the Court finds that Farm Bureau has met its burden to show
that the email addresses at issue for each John Doe Defendant in the First
Amended Complaint have been “sufficiently tested” to confirm they are valid and
thus “reasonably calculated, under all the circumstances, to apprise interested

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parties of the pendency of the action and afford them an opportunity to present
their objections,” see Mullane, 339 U.S. at 314, and Farm Bureau’s motion for
alternate service is GRANTED. Farm Bureau may serve the respective
Summonses and its First Amended Complaint as follows:
(1) On John Doe 1, d/b/a Smart Balance Wheel, www.smartbalancewheel.com, by email to [e-mail] (see Pg
ID # 85);
(2) On John Doe 2, d/b/a Miberi Tech, www.miberi.com, by email to
[e-mail] (see Pg ID # 49);
(3) On John Doe 3, d/b/a Smart Balance Board,
www.smartselfbalancewheel.com, by email to
[e-mail] (see Pg ID # 96);
(4) On John Doe 4, d/b/a Smart Balance Wheel,
www.smartwheelbalanceboard.com, by email to
[e-mail] and by registered mail or some other method
by which some delivery confirmation signed by the addresses would be
produce to Sunlight(UK) Trading Limited, 32 BRIGHTON ROAD
INVCC CENTRE REDHILL SURREY RH1 5BX (see Pg ID ## 13334); and
(5) On John Doe 5, d/b/a Storeshow, by email to [e-mail]
(see Pg ID ## 44-45).
A copy of this Order must be included with the other documents being served, and
the proofs of such service must so reflect.
IT IS SO ORDERED.

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Dated: November 17, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
Certificate of Service

I hereby certify that a copy of the foregoing document was sent to parties of record
on November 17, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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