WhosHere, Inc. v. Orun
Filing
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OPINION re Motion for permission to serve process by alternative methods. Signed by Magistrate Judge Thomas Rawles Jones, Jr on 2/20/14. (klau, )
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
WHOSHERE, INC.,
Plaintiff,
v.
GOKHAN ORUN d/b/a/
WhoNear; Who Near; whonear.me,
Defendant.
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Civil Action No. 1:13-cv-00526-AJT-TRJ
OPINION
Plaintiff WhosHere, Inc. moved for permission to serve process by alternative methods
on defendant, Gökhan Örün, who is allegedly located in Turkey. Dkt. No. 13. In accordance
with Fed. R. Civ. P. 4(f)(3), plaintiff proposed to serve process on defendant by email and
through two social networking sites, Facebook and LinkedIn. Id.
The court granted plaintiff’s motion and ordered that plaintiff serve process on defendant
by transmitting copies of the summons and complaint along with the order (no. 16) by: 1) email
to gokhan@whonear.me; 2) email to gokhanorun@gmail.com; 3) Facebook at
https://www.facebook.com/OrunGokhan; and 4) LinkedIn at
http://www.linkedin/in/gokhanorum. No. 16. This opinion explains the basis for that order.
I. Background and Procedural History
On April 30, 2013, plaintiff brought this action against defendant, alleging among other
things trademark infringement, unfair competition and cybersquatting. Plaintiff is a company
that offers a social proximity networking application that allows its users to create online profiles
and meet people near them with similar interests. Compl. ¶ 7. Launched in 2008, the
WhosHere application can be operated on mobile and technology devices including smartphones
and tablets. Id.
Defendant allegedly is an individual residing in and having his principal place of business
in Turkey. Compl. ¶ 2. Defendant allegedly does business as “WhoNear” and “whonearme”
which plaintiff asserts involves the unauthorized use of imitations of the WhosHere® trademark.
Compl. ¶ 21. Plaintiff alleges that defendant developed a social proximity networking
application and created a website, www.whonear.me, (“defendant’s website”) offering
defendant’s application. Compl. ¶¶ 23-25; Exs. D; E. Defendant is listed as the registrant and
administrative contact for www.whonear.me. Compl. ¶ 24.
On multiple occasions, plaintiff notified defendant of the alleged infringing activities but
he continued to use the “WhoNear” name despite requests by plaintiff to cease. Compl. ¶ 27;
No. 9-2 at ¶ 3. Plaintiff sent email communications addressed to defendant in hope of engaging
in discussions to resolve the issue. No. 14 at Ex. 1. On April 1, 2012, defendant responded by
email to plaintiff’s communications using the email address, gokhan@whonear.me. Id. In this
email correspondence, defendant allegedly stated that “[t]his is Gökhan, I'm founder and
developer of WhoNear” and further stated that he would “like to talk.” Id. Defendant provided
plaintiff with additional contact information including a second email address,
gokhanorun@gmail.com, and a Skype username: gokhanorun. Id.
In July 2013, plaintiff sent a courtesy copy of the complaint herein to defendant via
email to gokhan@whonear.me. Id. at ¶ 4. Defendant did not respond to this communication or
any further communications. Id; No. 14 at 2.
Plaintiff attempted to serve process on defendant under Rule 4(f)(1) pursuant to the
Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial
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Documents in Civil or Commercial Matters (“Hague Convention”). No. 9-2 at Ex. B. On
August 19, 2013, plaintiff contacted the Turkish Ministry of Justice and provided it with copies
of the summons and complaint translated into Turkish 1 to be served on defendant at the address
that was listed on defendant’s website. Id. at ¶ 5. As the initial service deadline was
approaching, on August 22, 2013, plaintiff requested an extension of time to serve the summons
and complaint. No. 6. On September 4, 2013, the court granted plaintiff’s motion and extended
the time to serve process on defendant through February 7, 2014. No. 8.
On November 19, 2013, the Turkish Ministry of Justice returned the summons and
complaint to the United States Office of Foreign Litigation (“OFL”) because defendant could not
be located at the address provided by plaintiff. No. 9-2 at ¶¶ 6-8; Exs. C, D. Plaintiff received
these documents back from the OFL on December 16, 2013. Id. at ¶ 7.
On January 22, 2014, plaintiff filed its second motion for an extension of time to serve
process on defendant in accordance with the Hague Convention. No. 9. On January 28, 2014,
plaintiff filed the present motion proposing that plaintiff be allowed to serve process on
defendant through email and social networking websites pursuant to Rule 4(f)(3). No. 13.
II. Legal Standard
In order to serve process on an individual in a foreign country, a federal plaintiff must
comply with both constitutional due process notice requirements 2 and Rule 4(f). In order for
service to satisfy due process, the methods of service must provide “notice 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.” Mullane v. Central Hanover Bank & Trust Co,
339 U.S. 306, 314 (1950); see also BP Prods. N. Am., Inc. v. Dagra, 232 F.R.D. 263, 264 (E.D.
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Defendant’s April 1, 2012 correspondence with plaintiff was in English and plaintiff’s email correspondences with
defendant were in English. No. 9-2 at ¶ 3; Dkt. No. 14, Ex. 1.
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U.S. CONST. amend. V (“No person …shall be deprived of life, liberty, or property, without due process of law…”
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Va. 2005). Rule 4(f)(1)-(3) governs service of process on an individual in a foreign country and
provides three mechanisms of service:
(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 [certain specified means outlined in the Rule]
reasonably calculated to give notice . . .; or
(3) by other means not prohibited by international agreement, as the court orders.
Recent decisions establish that courts applying Rule 4(f)(3) can order any means of
service so long as it provides reasonable assurance that defendant will be notified of the lawsuit
and is not prohibited by international agreement. See Rio Props. v. Rio Int'l Interlink 284 F.3d
1007, 1016-17 (9th Cir.2002); BP Prods. N. Am., Inc., 232 F.R.D. at 265 (E.D. Va. 2005);
Liberty Media Holdings, LLC v. Sheng Gan, No. 11-CV-02754-MSK-KMT, 2012 WL 122862 at
* 2 (D. Colo. Jan. 17, 2012). Ultimately, the decision whether to order alternative service of
process under Rule 4(f)(3) is within the sound discretion of the court. Henry Teichman v.
Caspian Flat Glass OJSC, 2013 WL 1644808, at *1 (W.D. Pa. April 16, 2013); BP Prods. N.
Am., Inc., 236 F.R.D. at 271.
It is well-established that Rule 4(f) does not establish a hierarchy of the three
mechanisms of service of process. See United States v. Lebanese Canadian Bank, 285 F.R.D.
262, 266 (S.D.N.Y. 2012). The Ninth Circuit in Rio Props. v. Rio Int'l Interlink succinctly
explained that service pursuant to Rule 4(f)(3) is “neither a last resort nor extraordinary relief. It
is merely one means among several which enables service of process on an international
defendant.” 284 F.3d at 1015. Thus, Rule 4(f) does not impose an exhaustion requirement and
the court can order service pursuant to Rule 4(f)(3) without requiring a plaintiff to first attempt
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service pursuant to Rule 4(f)(1) or Rule 4(f)(2). 3 Id; See also MorningStar v. Dejun, 2013 WL
502474, at *1 (C.D. Cal. Feb. 8, 2013).
In applying Rule 4(f)(3), a court may tailor the method of service to the circumstances so
long as that method 1) is not prohibited by international agreement and 2) comports with
constitutional notions of due process. See Anticevtic, 2009 WL 361739, at * 3. Courts therefore
have flexibly applied Rule 4(f)(3) to authorize service by differing modes of electronic and
online communications including email and social networking sites like Facebook. See, e.g.,
PCCare247 Inc., 2013 WL 841037 at *3-4 (S.D.N.Y Mar. 7, 2013) (permitting service by email
and Facebook); In re Int'l Telemedia Associates, Inc., 245 B.R. 713, 720 (Bankr. N.D. Ga. 2000)
(applying Rule 4(f)(3), to authorize service on defendant by fax and email address); Rio
Properties, Inc., 284 F.3d at 1016 (permitting service by email); Chanel, Inc. v.
acheterchanel.com, 2012 WL 3544844, at *3 (S.D. Fla. Aug. 16, 2012) (authorizing service of
process by email pursuant to Rule 4(f)(3)).
III. Discussion
The court finds that service of process on defendant by email and social networking
websites identified by defendant as belonging to him complies with both Rule 4(f)(3) and
constitutional due process.
A. The Proposed Means of Service Through Email and Social Media Websites Are
Not Prohibited By an International Agreement
Defendant is allegedly a resident of Turkey. The United States and Turkey are both
signatories to the Hague Convention. 4 Article 2 of the Hague Convention requires all judicial
3
While a plaintiff need not be required to demonstrate exigent or special circumstances before seeking an order
pursuant to Rule 4(f)(3), still a court in its discretion may require a plaintiff to demonstrate why court intervention is
necessary to effectuate service. See BP Prods. N. Am., Inc. v. Dagra, 232 F.R.D. 263, 264 (E.D. Va. 2005).
4
The Hague Convention on Private International law maintains a list of signatories available at
http://www.hcch.net/index_en.php?act=conventions.status&cid=17.
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documents in civil matters to be served through a Central Authority. 5 However, Article 10
permits service of process through alternative means like “postal channels” and “judicial
officers” provided that the destination state does not object to those means. 6 Although Turkey
has objected to the means listed in Article 10, its objection is specifically limited to the
enumerated means of service in Article 10. 7 Where a signatory nation objects to the methods of
service listed in Article 10, the court can order alternative methods of service not explicitly stated
in Article 10. See Richmond Techs., 2011 WL 2607158 at *12-13; Garung v. Malhorta, 279
F.R.D. 215, 219 (S.D.N.Y. 2011) (“Where a signatory nation has objected to only those means of
service listed in Article[10], a court acting under Rule 4(f)(3) remains free to order alternative
means of service that are not specifically referenced in Article [10])”; Anticevtic, 2009 WL
361739 at * 4 (permitting service by publication when recipient nations did not explicitly object
to such method of service). Here, Turkey has not specifically objected to service by email or
social media networking sites which are not explicitly listed as means of service under Article
10.
Several courts have permitted service of process by email and other electronic
communications where the country in which the defendant resides only generally objects to
Article 10. Garung v. Malhorta, 279 F.R.D. 215, 219 (S.D.N.Y. 2011); F.T.C. v. PCCare247
Inc., 2013 WL 841037 at *3-4 (S.D.N.Y Mar. 7, 2013) (permitting service by email and
Facebook); Facebook Inc. v. Banana Ads, LLC, 2012 WL 1038752, at *2 (N.D. Cal. Mar. 27,
2012) (referencing cases where service by email did not violate the Hague Convention).
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Hague Convention on Service Abroad of Judicial and Extrajudicial Documents art. 2, Nov. 15, 1965, 20 U.S.T.
361, 658 U.N.T.S. 163.
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Id. at Art. 10.
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See Declarations and Reservations, Hague Convention on Private International Law available
at http://www.hcch.net/index_en.php?act=authorities.details&aid=277.
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Likewise, the court finds that the alternative methods proposed by plaintiff here do not violate
any international agreement.
B. The Proposed Means of Service Comport With Due Process Because They Are
Reasonably Calculated Under the Circumstances To Provide Notice
The court finds that service of process through all four means of service, two email and
two social networking accounts ostensibly belonging to defendant, comports with due process
because it is reasonably calculated under the circumstances to provide defendant notice of this
suit. Collectively, these four methods are highly likely to provide defendant notice of this
litigation, because defendant himself provided plaintiff with these email contacts, and also
referred plaintiff to the social networking profiles which appear to be regularly viewed and
maintained by defendant. 8 No. 14 at 6; Ex. 1.
Here, on April 1, 2012, defendant, using the email address gokhan@whonear.me,
responded to plaintiff’s email correspondence which was addressed to defendant at
gokhan@whonear.me. Id. In this email, defendant stated that he was the “founder and
developer of WhoNear” and stated that he would “like to talk” with plaintiff further about the
matter. Id. In that email, defendant provided plaintiff with the alternative email address,
gokhanorun@gmail.com with a proceeding note stating that “you can find me in all social
network [sic] with this email address.” Id. Plaintiff identified that defendant has Facebook and
LinkedIn accounts under the name, Gokhan Orun, which contain information about defendant’s
involvement in the social networking and mobile technology business including WhoNear. No.
14 at 6; fn. 4. Moreover, the facts that gokhan@whonear.me contains the email host
“WhoNear.me”, the alleged infringing application, and his alleged social networking accounts all
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No. 14 at 6; fn. 4 (plaintiff describing that “Mr. Örün last posted to his Facebook page on January 22, 2014 and
subsequently responded to a commenter. See https://www.facebook.com/OrunGokhan. He also last updated his
LinkedIn page sometime in January 2014. See http://www.linkedin.com/in/gokhanorun.”).
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contain defendant’s first and last name linking him to WhoNear strongly corroborates the
assertion that these email addresses and social networking accounts belong to defendant. In
addition, the content of defendant’s email to plaintiff containing his social networking and email
contacts strongly implies that these are his preferred methods of communication which he
regularly uses. 9
Moreover, prior to and after the filing of the lawsuit, plaintiff electronically
communicated with defendant about the basis of the lawsuit and even emailed defendant a copy
of the complaint. No. 9-2 at ¶¶ 3-6. In tailoring alternative methods of process pursuant to Rule
4(f)(3), courts have taken into consideration whether defendant already possessed either
knowledge of suit or that he may be the subject to a suit. BP Prods. N. Am., Inc., 236 F.R.D. at
272. In the case at hand, plaintiff has shown that defendant is presumably abreast of both the
subject matter of the litigation and is likely already in receipt of the complaint. For these
reasons, the court finds that the proposed methods of service comport with due process because
they are reasonably calculated to give defendant notice of the suit. This holding finds support in
the decisions of other courts discussed above.
Finally, while the court finds that plaintiff could have sought an order pursuant to Rule
4(f)(3) without first resorting to Rule 4(f)(1) or (2), the court notes that even were this not so, this
plaintiff did seek unsuccessfully to effectuate service on the defendant through the Hague
Convention pursuant to Rule 4(f)(1). Thus, even if Rule 4 did create a hierarchy of methods of
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Additionally, the court finds that service of process by email and social networking sites is particularly appropriate
here considering that defendant is in the technology business and allegedly identifies himself as a “mobile
technology enthusiast” on his LinkedIn page. See Philip Morris v. Veles Ltd., 2007 WL 725412 at *3 (S.D. NY
Mar. 12, 2007) (authorizing service by email and fax where “defendants conduct business extensively through their
Internet website and corresponds regularly with customers via email”); See LinkedIn,
http://www.linkedin.com/in/gokhanorun (last visited February 11, 2014).
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service, a proposition that this court has rejected, this plaintiff would still be entitled to use the
means of service ordered here under the circumstances presented.
IV. Conclusion
For these reasons, the court has entered an order (no. 16) granting plaintiff’s motion (no.
13) and approving service of the summons and complaint pursuant to Fed. R. Civ. P. 4(f)(3).
/s/
Thomas Rawles Jones, Jr.
United States Magistrate Judge
February 20, 2014
Alexandria, Virginia
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