Ultra Records, LLC v. Chee Yee Teoh et al

Filing 16

MEMORANDUM OPINION AND ORDER......Ultra Records has demonstrated that service through the Hague Convention is not feasible, that it is unable to serve process to the defendants under Russian law, and that its attempts to serve via certified mail have been unsuccessful. In responding to the counter-notification, the defendants listed [e-mail] as an email address at which they could be reached. Plaintiff also purports to have communicated with Chee Yee at [e-mail]. Accordingly, it is hereby ORDERED that alternate service via email is permitted and shall be made at both email addresses. (Signed by Judge Denise L. Cote on 4/18/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ULTRA RECORDS, LLC,
:
Plaintiff,
:
:
-v:
:
CHEE YEE TEOH and ALEKSANDER KHUDALEEV,:
:
Defendants.
:
:
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16cv9996(DLC)
MEMORANDUM
OPINION AND ORDER

DENISE COTE, District Judge:
Plaintiff Ultra Records, LLC (“Ultra Records”) moves for an
order pursuant to Fed. R. Civ. P. 4(f)(3) permitting alternate
service via email of the summons and complaint upon the
defendants, Chee Yee Teoh and Aleksander Khudaleev
(“Khudaleev”). 1
infringement.
copyright.

The underlying action is a suit for copyright
Ultra Records purports to be the owner of the

It sent takedown notices to YouTube on or about

December 1, 2016 under the Digital Millennium Copyright Act
requesting that videos posted on a channel called “Chee Yee
Teoh” be removed.

The owner of the YouTube channel responded

with a counter-notification under the Act claiming that the use
was not infringing because it had permission to use the work.
The counter-notification stated that “I . . . will accept

The complaint alleges that “[u]pon information and belief, the
defendant, Chee Yee Teoh, is an assumed name of the defendant,
Aleksander Khudaleev.”
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service of process from the claimant” and was signed by
Khudaleev.

It provided a physical address in Moscow, and an

email address, [e-mail].

Ultra

Records also corresponded via email with an individual who
signed their name “Chee Yee” on January 24 and 25, 2017, via the
email address [e-mail].

This person stated that

“[m]y friend Alex promised to resolve the issue, but I didn’t
know about his methods.”
Service on a foreign defendant pursuant to the Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, Nov. 15, 1965, [1969]
20 U.S.T. 361, T.I.A.S. No. 6638 (“Hague Service Convention”),
is “mandatory” when serving a defendant who resides in a foreign
country that is a signatory to the Convention.

Volkswagenwerk

v. Aktiengesellschaft, 486 U.S. 694, 699 (1988); see, e.g.,
Burda Media, Inc. v. Viertel, 417 F.3d 292, 299-300 (2d Cir.
2005).

Where a member state has categorically refused to effect

service through the Hague Convention procedures, however,
service need not be attempted under the Hague Convention before
alternative service methods may be employed.

Nuance Commc’ns,

Inc. v. Abbyy Software House, 626 F.3d 1222, 1238 (Fed. Cir.
2010).

While Russia is a signatory to the Convention, the U.S.

Department of State advises it no longer abides by the
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Convention and is not considered a party to it.
Fed R. Civ. P 4(f) provides that
Unless federal law provides otherwise, an individual—
other than a minor, an incompetent person, or a person
whose waiver has been filed—may be served at a place
not within any judicial district of the United States:
(1) by any internationally agreed means of service
that is reasonably calculated to give notice, such as
those authorized by the Hague Convention on the
Service Abroad of Judicial and Extrajudicial
Documents;
(2) if there is no internationally agreed means, or
if an international agreement allows but does not
specify other means, by a method that is reasonably
calculated to give notice:
(A) as prescribed by the foreign country's law for
service in that country in an action in its courts of
general jurisdiction;
(B) as the foreign authority directs in response to
a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country's law,
by:
(i) delivering a copy of the summons and of the
complaint to the individual personally; or
(ii) using any form of mail that the clerk
addresses and sends to the individual and that
requires a signed receipt; or
(3) by other means not prohibited by international
agreement, as the court orders.
Plaintiff avers, and the docket reflects, that it sought to
effect service under Rule 4(f)(2)(C)(ii) by having the Clerk
send by Federal Express the summons and complaint with Russian
translations to both defendants.
delivered.

Neither package was able to be

Ultra Records also consulted Russian counsel

regarding how to serve the summons and complaint pursuant to
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Russian law, and was advised that there are no process servers
in Russia for civil cases, that service may be done through the
mail but to be effective it has to be delivered to the
defendant’s domicile at a residential address.

The address that

Ultra Records has is for an office building in Moscow.
Rule 4(f)(3), Fed. R. Civ. P., permits a court to direct
service on a defendant in a foreign country by any “means not
prohibited by international agreement.”

Rule 1, Fed. R. Civ. P.

instructs that the rules “should be construed, administered, and
employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and
proceeding.”

A court is afforded wide discretion in ordering

service of process under Rule 4(f)(3).

See Rio Properties, Inc.

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

An

order for alternative service must comply with due process
requirements, which call for notice that is “reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action.”

Mullane v. Central

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

Where a

defendant cannot be reached by mail, service of process via
email may be appropriate.

Rio Properties, 284 F.3d at 1017–18.

Ultra Records has demonstrated that service through the
Hague Convention is not feasible, that it is unable to serve
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process to the defendants under Russian law, and that its
attempts to serve via certified mail have been unsuccessful.

In

responding to the counter-notification, the defendants listed
[e-mail] as an email address at
which they could be reached.

Plaintiff also purports to have

communicated with “Chee Yee” at [e-mail].
Accordingly, it is hereby
ORDERED that alternate service via email is permitted and
shall be made at both email addresses.
Dated:

New York, New York
April 18, 2017
__________________________________
DENISE COTE
United States District Judge

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