State of Ohio, ex rel Ohio Attorney General Dave Yost v. Jones et al
Filing
134
ORDER granting 128 Plaintiff's Motion for Order Authorizing Alternative Service Upon Defendant Sumco Panama, S.A. Signed by Magistrate Judge Kimberly A. Jolson on 1/28/25. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STATE OF OHIO, ex rel OHIO ATTORNEY
GENERAL DAVE YOST,
Plaintiff,
v.
Civil Action 2:22-cv-2700
Judge Algenon L. Marbley
Magistrate Judge Kimberly A. Jolson
AARON MICHAEL JONES, et al.,
Defendants.
ORDER
This matter is before the Court on Plaintiff’s Motion for Order Authorizing Alternative
Service Upon Defendant Sumco Panama, S.A. (Doc. 128). For the reasons that follow, the Motion
is GRANTED.
I.
BACKGROUND
As the Court has summarized previously (Doc. 12), this case is about robocalls. Plaintiff,
the State of Ohio, ex rel. Attorney General Dave Yost, alleges that Defendants “acting individually
and collectively through a common enterprise, have participated in an unlawful robocall operation
that bombarded American consumers with billions of robocalls.” (Doc. 1 at 4 (emphasis in
original); see id. at ¶¶ 11–32 (naming fourteen corporate Defendants and eight individual
Defendants)).
Plaintiff brings this action under the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227(g); the Telemarketing and Consumer Fraud and Abuse Prevention Act
(“Telemarketing Act”), 15 U.S.C. § 6103(a), for Defendants’ violations of Federal Trade
Commission’s (“FTC”) Telemarketing Sales Rule (“TSR”), 16 C.F.R. Part 310; the Ohio
Consumer Sales Practices Act (“Ohio CSPA”), Ohio Rev. Code § 1345.07; and the Ohio
Telephone Solicitation Sales Act (“Ohio TSSA”), Ohio Rev. Code § 4719.12. (Doc. 1 at ¶¶ 1,
157–200).
Relevant here, Plaintiff alleges that Defendant Sumco Panama, S.A. (“Sumco
Panama”) is a “foreign corporation formed in March 2012 with its principal place of business in
Panama City, Panama” and that it participated in the illegal actions alleged in the Complaint. (Doc.
1 at ¶ 21; see also id. at ¶ 30 (alleging Defendant Jovita Migdaris Cedeno Luna “has had the
authority and responsibility to prevent or correct the unlawful telemarketing practices of Sumco
Panama, and has formulated, directed, controlled, had the authority to control, or participated in
the acts and practices of Sumco Panama . . . .”)).
The Court has allowed extensions to the case schedule, in part, to allow Plaintiff sufficient
time to serve foreign Defendants, including Defendant Sumco Panama. (See, e.g., Doc. 100). In
the most recent status report updating the Court on service matters, Plaintiff noted that it still had
not located a valid service address for Sumco Panama. (Doc. 127). Plaintiff subsequently filed
the motion at bar, which requests an order to serve Sumco Panama electronically at two email
addresses. (Doc. 128). The Court expedited briefing on the motion (Doc. 132), but no party filed
a response. This matter is ripe for consideration.
II.
STANDARD
The requirements for service of both corporations and individuals under Rule 4(f)(3) “are
that the alternative method of service authorized under that provision (1) must be directed by the
court, and (2) must not be prohibited by international agreement.” Med. Protective Co. v. Ctr. for
Advanced Spine Techs., Inc., No. 1:14-CV-005, 2014 WL 12653861, at *1 (S.D. Ohio Jan. 13,
2014) (citing Lexmark Int’l, Inc. v. Ink Techs. Printer Supplies, LLC, 291 F.R.D. 172, 174 (S.D.
Ohio 2013); 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1134
(3d ed. 1998) (“The only proscription on the district court’s discretion [to authorize alternative
service] is that the method not be prohibited by international agreement.”)). Further, “[t]he method
of service selected must also satisfy due process requirements in that it be ‘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.’” Med. Protective Co., 2014 WL 12653861, at *1
(quoting Lexmark Int’l, Inc., 291 F.R.D. at 174).
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Importantly, “Rule 4(f)(3) is neither a last resort nor extraordinary relief.” Med. Protective
Co., 2014 WL 12653861, at *1 (quotation marks and citations omitted). Rather, “[i]t is merely
one means among several which enables service of process on an international defendant.” Id.
(quotation marks and citations omitted). In assessing Plaintiff’s Motion, “[t]he Court must
determine within its discretion whether the facts and circumstances of the case warrant an order of
alternative service.” Id. (citations omitted).
III.
ANALYSIS
In its Motion, Plaintiff details attempts to serve Sumco Panama. First, Plaintiff attempted
to serve Sumco Panama at an address in Panama. (Doc. 128 at 3; see also Doc. 35 (issued
summons); Doc. 57 (letters of rogatory)). But the “street address was incomplete,” so service was
unsuccessful. (Doc. 128 at 3). Plaintiff then located another potential address. (Id.). This address
was also supposedly an address for a different Defendant in this case, Jovita Migdaris Cedeno
Luna. (Id.). When Plaintiff attempted to complete service on Defendant Luna at the second
Panamanian address, service failed because the address turned out to be vacant residential
apartment. (Id.). So, Plaintiff did not attempt to serve Sumco Panama there, as the attempt would
have been doomed to fail. (Id.). Plaintiff then reviewed responses to subpoenas, public records,
and corporate documents, but ultimately was unable to locate another address for Sumco Panama.
(Id.; Doc. 128-3 at ¶¶ 3–17 (declaration of investigator John Isaacs attesting to these efforts)).
Plaintiff argues that, under the circumstances, alternative methods of service are necessary.
Specifically, Plaintiff contends that it “has located two email addresses that are reasonably
calculated to give Defendant Sumco [Panama]” notice of this action. (Doc. 128 at 4). The Court
agrees that allowing alternative service is warranted here.
First, as detailed above, the Court finds that Plaintiff has reasonably attempted to effectuate
service on Defendant Sumco Panama. Plaintiff unsuccessfully tried one address, located another
address that was vacant, and made attempts to find a third—to no avail. (See Doc. 128 at 3–4;
Doc. 128-3 at ¶¶ 3–17). It is unclear, at this point, what further reasonable measures Plaintiff could
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take to locate a viable address at which to effectuate service.
Next, service by electronic mail is not prohibited by international law. As Plaintiff says,
the United States and Panama are signatories to the Inter-American Convention on Letters
Rogatory. (Doc. 128 at 6); see also Elcometer, Inc. v. TQC-USA, Inc., No. 12-CV-14628, 2013
WL 592660 (E.D. Mich. Feb. 14, 2013) (noting the treaty “provides a method of service that is
mutually recognized by both Panama and the United States.”). “These conventions establish a
method agreed upon by both countries for service of civil process within their borders. [But]
[u]nlike the Hague Convention, the Inter-American Convention does not purport to provide the
exclusive method of effecting service between the signatories.” C & F Sys., LLC v. Limpimax,
S.A., No. 1:09-CV-858, 2010 WL 65200, at *1 (W.D. Mich. Jan. 6, 2010) (considering alternative
service for defendants in the Republic of Peru). In other words, electronic service is not prohibited
under the Inter-American Convention. Elcometer, Inc., 2013 WL 592660, at *2 (allowing service
through email to defendants located in Panama); see also RoyaltyStat, LLC v. IntangibleSpring
Corp., No. CV PX 15-3940, 2017 WL 930129, at *2 (D. Md. Mar. 9, 2017) (noting the InterAmerican Convention on Letters Rogatory does not “‘foreclose other methods of service among
parties residing in different signatory nations, if otherwise proper and efficacious’” (citation
omitted)).
Lastly, the Court concludes that service by electronic mail in this instance is “reasonably
calculated, under all the circumstances, to apprize interested parties of the pendency of the action
and afford them an opportunity to present their objections.” Lexmark Int’l, Inc., 2013 WL
12178588, at *2 (citation and internal quotation marks omitted). “Service by email comports with
due process when it is reasonably calculated to reach the defendant.” Id. at *4 (collecting cases)
(but noting “the mere existence of an email address does not automatically mean service is
reasonably calculated to reach the defendant”). To this end, the court in FKA Distributing
Company LLC v. Yisi Technology Company, considered whether the defendant to be served via
email “does business via email, and whether the movant has established that the email address in
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question is valid.” No. 17-CV-10226, 2017 WL 4129538, at *2 (E.D. Mich. Sept. 19, 2017). Of
the latter, the court explained that “some ways to show the validity of an email address include:
providing the Court with declarations from individuals who received emails from the email address
in question, and demonstrating that emails mailed to the email address in question were not
returned as undeliverable or did not ‘bounce back.’” Id. (citations omitted). In that case, the
plaintiff successfully demonstrated both considerations by providing evidence that (1) the
defendants’ website listed two email addresses through which potential customers could contact
them; and (2) test emails sent to those email addresses did not bounce back. Id.; cf. Chanel, Inc.
v. Song Xu, No. 2:09-CV-02610-CGC, 2010 WL 396357, at *4 (W.D. Tenn. Jan. 27, 2010)
(commenting that service via email comported with constitutional standards, in part, because ecommerce businesses “must maintain valid e-mail accounts and check them regularly to receive
new orders and provide customers with receipts and shipping information.”).
Plaintiff argues Sumco Panama is in the same boat. In particular, Plaintiff submits
documents showing Sumco Panama “conducted business over the internet and used electronic mail
to run its business.” (Doc. 128 at 7–8; see, e.g., Doc. 128-3 at 1–5; 35–49 (September 2020 master
choice agreement between Sumco Panama, S.A. and Great Choice Telecom LLC listing
sumcopanama@protonmail.com as the email where notices should be sent); 64–66 (February 2020
emails from the sumco.panama@gmail.com account to a Modok Telecom representative); Doc.
128-4 at 1–16 (January 2020 master services agreement between Sumco Panama S.A. and Modok
Telecom, LLC listing sumcopanama@protonmail.com as where notices should be sent to and
emails between those parties related to the agreement), 24–27 (April 2020 emails to
sumcopanama@protonmail.com documenting a new account with Talkie communications and
noting payment had been received), 28–30 (September 2020 Great Choice Telecom Customer
Anti-Robocall Screening Questionnaire filled out for Sumco Panama, S.A. documenting the
company email contact as sumcopanama@protonmail.com)). While it is true that much of this
email communication took place in 2020, Plaintiff also submitted evidence that more recently
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when it sent emails to sumco.panama@gmail.com and sumcopanama@protonmail.com, Plaintiff
received delivery receipts showing the emails were delivered and did not bounce back. (Doc. 1285 (showing the emails were sent on September 13, 2024 and October 3, 2024)). Given these
circumstances, the Court finds service via email to these addresses is reasonably calculated to
apprise Defendant Sumco Panama of this action.
In sum, the Court finds that the facts and circumstances of this case warrant the exercise of
its discretion to allow alternative service.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Order Authorizing
Alternative Service Upon Defendant Sumco Panama, S.A. (Doc. 128). Plaintiff is permitted to
serve
Defendant
Sumco
Panama,
S.A.
at
sumco.panama@gmail.com
sumcopanama@protonmail.com.
IT IS SO ORDERED.
Date: January 28, 2025
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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