Carrillo v. Sabbadini et al
Filing
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OPINION & ORDER re: 26 FIRST MOTION to Serve Micol Sabbadini. filed by Cristina Carrillo. For the reasons stated herein, Plaintiff's motion to serve by alternate means is GRANTED. Plaintiff may serve Defendant Micol Sabbadini by email at sabbadinim@gmail.com, and, as a backstop, by email to Sabbadini's U.S. counsel and by private message to Sabbadini's Instagram account. The Clerk's Office is respectfully directed to terminate the open motion at Doc. 26. (Signed by Judge Vernon S. Broderick on 1/27/2025) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
CRISTINA CARRILLO,
:
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Plaintiff,
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-v:
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MICOL SABBADINI, et al.,
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Defendants. :
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23-CV-5692 (VSB)
OPINION & ORDER
Appearances:
Melissa Anne Bright
EmClara, LLC
Glen Echo, MD
Counsel for Plaintiff
Marc Schuyler Reiner
Hand Baldachin & Amburgey LLP
New York, NY
Counsel for Defendants ZV France S.A.S. and ZV NY, Inc.
VERNON S. BRODERICK, United States District Judge:
On July 1, 2023, Plaintiff Cristina Carrillo filed a complaint against Defendants Micol
Sabbadini, ZV NY, Inc. (“ZV NY”), ZV France, S.A.S. (“ZV France”), and John Does 1-10
(collectively, the “Defendants”) alleging copyright infringement claims. (Doc. 1, “Complaint”.)
Plaintiff filed affidavits of service for ZV NY and ZV France on August 12, 2023, and June 27,
2024, respectively. (Docs. 16, 25.)
On June 28, 2024, Plaintiff filed the present Motion for Alternative Service under Federal
Rule of Civil Procedure 4(f)(3). (Doc. 26.) In support of her motion, Plaintiff filed, among other
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things, a memorandum of law, (“Pl. Mem.”1), and an affidavit of Melissa A. Bright, Plaintiff’s
counsel, (“Bright Decl.”2). Because Plaintiff adequately states a basis for alternative service
pursuant to Federal Rule of Civil Procedure 4(f)(3), Plaintiff’s motion is GRANTED.3
Service Pursuant to Rule 4(f)(3)
Plaintiff seeks alternative means to serve Defendant Sabbadini, who is located in Italy,
under Federal Rule of Civil Procedure 4(f)(3). (Pl. Mem. 5.) Rule 4(f)(3) permits service on an
individual in a foreign country “by other means not prohibited by international agreement, as the
court orders.” Fed. R. Civ. P. 4(f)(3). Whether to allow alternative service under Rule 4(f)(3) is
“committed to the sound discretion of the district court.” RSM Prod. Corp. v. Fridman, No.
06-CV-11512, 2007 WL 1515068, at *1 (S.D.N.Y. May 24, 2007) (quoting Brockmeyer v. May,
383 F.3d 798, 805 (9th Cir. 2004)).
Although service under Rule 4(f)(3) is not considered a last resort, some courts have
required a plaintiff seeking service under Rule 4(f)(3) to have already reasonably attempted to
serve the defendant. See, e.g., Halvorssen v. Simpson, 328 F.R.D. 30, 34–35 (E.D.N.Y. 2018); In
GLG Life Tech Corp. Sec. Litig., 287 F.R.D. 262, 265–66 (S.D.N.Y. 2012); Devi v. Rajapaska,
No. 11-CV-6634, 2012 WL 309605, at *2 (S.D.N.Y. Jan. 31, 2012).
Plaintiff details her various attempts at serving Sabbadini, beginning from the day after
“Pl. Mem.” refers to Plaintiff’s memorandum of law in support of her Motion for Alternative Service, dated June
28, 2024. (Doc. 26-1.)
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“Bright Decl.” refers to Melissa A. Bright’s declaration in support of Plaintiff’s Motion for Alternative Service,
dated June 28, 2024. (Doc. 26-2.)
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I note that in their answer, Defendants ZV NY and ZV France allege crossclaims of breach of contract against
Defendant Micol Sabbadini. (Doc. 52 at 15–18.) However, the fact that Sabbadini may be a crossclaim defendant
in this action is not relevant to the analysis in this Opinion & Order. Defendants ZV NY and ZV France have not
filed affidavits of service of their crossclaims against Defendant Sabbadini. Nor have they moved for alternative
service or made any other requests about serving Sabbadini. I therefore do not opine on whether Defendants ZV NY
and ZV France may serve their crossclaims to Sabbadini through her email address or another alternative means of
service.
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this Complaint was filed. (Bright Decl. ¶ 13 (email of the Complaint to Sabbadini’s attorney,
Avv. Nino Di Bella).) Even before the Complaint was filed, Plaintiff corresponded with
Sabbadini regarding the issues underlying this case by sending correspondence to an email
address, sabbadinim@gmail.com, which presumably is Sabbadini’s personal email address. (Id.
¶ 7.) Sabbadini seems to be aware of this action, as indicated by the various email
correspondence between Plaintiff and Sabbadini. (Id. ¶ 29 (email from Sabbadini to Bright
regarding “Court E-Mails”).) Plaintiff also emailed copies of the Complaint and Sabbadini’s
Summons, among other papers, to Sabbadini’s attorney Avv. Yuri Nadelreich and his successor
Nancy Wolff. (Id. ¶¶ 15–18.) Sabbadini, through her U.S. counsel Wolff, twice refused
Plaintiff’s request to waive service. (Id. ¶¶ 20, 23.) Plaintiff’s counsel accordingly reached out
to seven service-of-process companies to effectuate service on Sabbadini in Italy in a manner
consistent with the Hague Convention. (Id. ¶ 24.) However, Plaintiff was unable to retain any
service-of-process company because Plaintiff could not provide Sabbadini’s address, which was
required under the Hague Convention. (Id. ¶ 25.) Plaintiff’s counsel then hired an Italian private
investigator who made various attempts to find out Sabbadini’s address, but was unable to do so.
(Id. ¶¶ 26–27.) These attempts demonstrate the time and resources Plaintiff expended in diligent
efforts to serve Sabbadini. For these reasons, I find that Plaintiff’s multiple attempts at service
are sufficient to show that Court intervention is necessary.
Plaintiff seeks to serve Sabbadini using her personal email address, and as a “backstop”
Sabbadini’s U.S. counsel Nancy Wolff as well as Sabbadini’s official Instagram account. (Pl.
Mem. 14–16.) Plaintiff argues that although Italy and the United States are parties to the Hague
Convention, Plaintiff cannot serve Sabbadini because Plaintiff does not know Sabbadini’s
address, despite significant efforts to determine that address. (Id. at 9.) I find that alternative
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service by email, along with the “backstop” of serving via Sabbadini’s U.S. counsel and
Instagram account, is warranted under Rule 4(f)(3).
First, Plaintiff may serve Sabbadini using her personal email address,
sabbadinim@gmail.com. Zanghi v. Ritella, No. 19-CV-5830, 2020 WL 589409 (S.D.N.Y. Feb.
5, 2020), is particularly instructive where a plaintiff requests court approval to serve a defendant
by email. In Zanghi, the court granted Plaintiffs’ request to serve one defendant, who was
located in Italy, by email. 2020 WL 589409, at *6–7. The court granted Plaintiffs’ request to
serve a defendant using an email address because (1) that defendant’s recent usage of that email
address “indicate[d] that an email to it is likely to reach him,” and (2) that defendant used that
email address to send an email which “implicate[d] one of the factual bases for plaintiffs’
claims.” Id. at *6 (citations omitted). Similarly, Plaintiff here shows Sabbadini’s recent and
consistent usage of the email address, suggesting that an email will likely reach Sabbadini.
Further, Plaintiff’s proffered emails show that sabbadinim@gmail.com was used in connection
with the instant action, including about both the underlying issues of this case and even updates
in the docket for deficient-filing notices. (Id. at 6–7 (citing various emails with Sabbadini).)
Second, as a “backstop,” Plaintiff is directed to serve Sabbadini’s U.S. counsel. Service
on a foreign defendant’s U.S. counsel is appropriate where that U.S. counsel will inform the
foreign defendant of the case. See, e.g., In GLG Life Tech Corp. Sec. Litig., 287 F.R.D. at 267
(service on U.S. counsel was “virtually guaranteed to provide notice to” the defendant);
NYKCool A.B. v. Pac. Int’l Servs., Inc., No. 12-CV-5754, 2015 WL 998455, at *4 (S.D.N.Y.
Mar. 5, 2015) (“clear that [defendant’s] lawyers are in touch with him”). Here, Plaintiff has
already corresponded with Sabbadini’s counsel, both U.S. and non-U.S, despite Sabbadini
changing counsel numerous times. (Bright Decl. ¶¶ 10, 12, 17–23.) Sabbadini herself has either
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included her U.S. counsel in email correspondence with Plaintiff, (id. ¶ 9), or referred Plaintiff to
correspond with U.S. counsel, (id. ¶¶ 29–30). Moreover, Sabbadini twice rejected Plaintiff’s
request for Sabbadini to waive service, both times through Sabbadini’s U.S. counsel. (Id. ¶¶ 21,
23.) These facts indicate that Sabbadini is in contact with her U.S. counsel, and therefore that
service on U.S. counsel would provide notice of this action to Sabbadini.
Finally, as another “backstop,” Plaintiff is directed to serve the Complaint and Summons
by private message to Sabbadini’s official Instagram account. Courts have allowed service
through social media platforms as a “backstop” for service by other means. See Doe v. Hyassat,
337 F.R.D. 12, 15–16 (S.D.N.Y. 2020) (collecting cases). Plaintiff has shown that Sabbadini
regularly posts on her Instagram account, including posts of the allegedly copyrighted works.
(Id. ¶ 33.) In addition, Plaintiff has shown that Sabbadini’s Instagram account has a blue
checkmark verification badge. (See id.; Pl. Mem. 16.) These facts further suggest that service
by Instagram message as a backstop would also provide notice to Sabbadini regarding the instant
Complaint.
Due Process
Although service by email is allowable under Rule (4)(3), service must also “comport[]
with constitutional notions of due process.” Zanghi, 2020 WL 589409, at *6 (internal quotation
marks omitted). “[A] means of service comports with due process if it is ‘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.’” Fisher v. Petr Konchalovsky Found., No.
15-CV-9831, 2016 WL 1047394, at *2 (S.D.N.Y. Mar. 10, 2016) (quoting Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). It is well settled that service of foreign
defendants by email can satisfy due process. See AMTO, LLC v. Bedford Asset Mgmt., LLC, No.
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14-CV-9913, 2015 WL 3457452, at *7 (S.D.N.Y. June 1, 2015) (“[T]he Court concludes that, as
a general matter, service via email for a defendant residing in Russia may qualify as an
alternative means of service under Rule 4(f)(3)”); Philip Morris USA Inc. v. Veles Ltd., No.
06-CV-2988, 2007 WL 725412, at *2 (S.D.N.Y. Mar. 12, 2007) (“[F]ederal courts have
approved email service of process as an appropriate means under Rule 4 in proper
circumstances.”); FTC v. PCCare247 Inc., No. 12-CV-7189, 2013 WL 841037, at *4–5
(S.D.N.Y. Mar. 7, 2013) (granting service by email and Facebook on a defendant in India).
Plaintiff’s historical email correspondence with Sabbadini suggest that she “would be
likely to receive the summons and complaint at the given email address.” Kelly Toys Holdings,
LLC v. Top Department Store, No. 22-CV-558, 2022 WL 3701216, at *9 (S.D.N.Y. Aug. 26,
2022) (internal quotation marks omitted). Moreover, as Plaintiff notes, Sabbadini’s
responsiveness to that email address in the past indicates that she would likely receive and view
the Complaint and Summons if served to that email address. (Pl. Mem. 14 (citing Bright Decl.
¶ 9).)
Given these facts, service by email is reasonably calculated to provide Sabbadini with
notice of this action and is the means most likely to provide Sabbadini notice of this case, if she
did not have notice already. Service by email to Sabbadini’s U.S. counsel and by private
message to Sabbadini’s verified Instagram account, as backstops, would also increase the
likelihood that Sabbadini has notice of this case. Accordingly, I find that service by the
alternative means requested here comport with due process.
Conclusion
For the reasons stated herein, Plaintiff’s motion to serve by alternate means is
GRANTED. Plaintiff may serve Defendant Micol Sabbadini by email at
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sabbadinim@gmail.com, and, as a backstop, by email to Sabbadini’s U.S. counsel and by private
message to Sabbadini’s Instagram account. The Clerk’s Office is respectfully directed to
terminate the open motion at Doc. 26.
SO ORDERED.
Dated:
January 27, 2025
New York, New York
______________________
Vernon S. Broderick
United States District Judge
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