ME2 Productions Inc v. Doe 1 et al

Filing 21

ORDER re Plaintiff's 19 Motion for Leave to Permit Alternative Service, signed by Judge Robert S. Lasnik. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ME2 PRODUCTIONS, INC.,

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Plaintiff,
Case No. C17-0466RSL
v.
SIMON POULSON, et al.,

ORDER REGARDING SERVICE
BY MAIL

Defendants.

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This matter comes before the Court on plaintiff’s “Motion to Permit Alternative

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Mail Service or for Additional Time to Attempt Process Service.” Dkt. # 19. Plaintiff has

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not served two of the named defendants, and the 90 day deadline for service expired on

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June 20, 2017. Two days later, plaintiff filed this motion seeking leave to serve Yotam

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Shaked and Pamila Khounmany by mail or, in the alternative, for an extension of time in

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which to serve.

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A. Service by Mail

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Federal Rule of Procedure 4(e)(1) allows plaintiff to effect service “pursuant to the

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law of the state in which the district is located.” Washington law authorizes service by

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mail upon a showing that (a) defendant has made reasonably diligent efforts at personal

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service (Rodriguez v. James-Jackson, 127 Wn. App. 139, 140 (2005)), and (b) defendant

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resides in the state but has concealed herself in order to avoid service of process (RCW

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4.28.100(4)). Plaintiff has made multiple unsuccessful attempts to personally serve

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defendants Shaked and Khounmany. Lack of success in personal service does not
ORDER REGARDING SERVICE BY MAIL - 1

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necessarily justify service by mail, however. The facts regarding Shaked and Khounmany

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vary and must be considered separately.

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With regards to Shaked, there is evidence that the named defendant resides at, or is

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associated with, the address used by the process server. The server reported that

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defendant answered the intercom at one point, but denied his identity. In addition, the

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third-party server left a message through the intercom to which Shaked has apparently

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declined to respond. All of the prerequisites for allowing service by mail are therefore

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satisfied as to defendant Shaken, and there is reason to believe that service by mail will

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effectively notify defendant of the claims against him.

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With regards to defendant Khounmany, however, there is no indication that the

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address used by the process server is, in fact, connected to defendant. In its motion,

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plaintiff states that the address has been confirmed by the ISP “and/or investigative

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databases,” citing counsel’s declaration as support. Dkt. # 19 at 2. The declaration is

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silent regarding what information was provided by the ISP and what investigation was

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done to confirm that the defendant could be found at the specified address. Nor is there

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anything in the process server’s notes that ties Khounmany to the address used: there are

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no names on the intercom in the apartment building in which Khounmany has been

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sought and neither the manager nor a tenant confirmed her residence. Even if the Court

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assumes that Comcast provided the address listed on the summons, the information was

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provided in relation to internet usage in March 2017, more than three months ago. Absent

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some evidence from which one could reasonably conclude that the defendant currently

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resides at, or is associated with, the address used by the process server, the Court will not

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assume that service by mail will effectively notify Khounmany of this lawsuit.

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Second, there is no evidence from which one could reasonably conclude that

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Khounmany is concealing herself for the purpose of avoiding service. None of the

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entries made by the process server gives rise to an inference that the apartment was
ORDER REGARDING SERVICE BY MAIL - 2

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occupied when the process server arrived and that the resident refused to answer the

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door/intercom. The prerequisites for allowing service by mail are not, therefore, satisfied.

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There being no reason to believe that service by mail at the addresses used by the process

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server will effectively notify Khounmany of the claims against her, the motion for leave

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to serve by mail is DENIED.

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B. Extension of Service Deadline

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It can be challenging to meet the 90 day service deadline in BitTorrent cases where

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plaintiff must first conduct discovery from the ISP before it can identify, name, and serve

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the defendant. It can be done, however, and the Court has repeatedly indicated that it

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expects at least a good faith effort to comply with the service deadline. In this case, the

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motion for leave to conduct expedited discovery was granted in a timely manner, and

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plaintiff has not indicated that there was any delay in the ISP’s response. As the Court has

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previously noted, in these circumstances, an extension of time should be necessary only if

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a defendant failed to waive or was dodging service.

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Plaintiff asserts that Khounmany “elected not to return the request for waiver” of

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service under Fed. R. Civ. P. 4(d). Dkt. # 19 at 1. There is no evidence that a waiver was

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ever sent, however, much less that it was sent in a timely manner. The only evidence of

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attempted service in the record shows that plaintiff engaged a process server twelve days

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before the deadline for service. Plaintiff has not shown good cause for an extension of

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time. Nevertheless, a brief extension of the service deadline will be granted in this case

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because the Court had not previously considered this situation. In the future, however,

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similar evidentiary showings will result in the dismissal of the claims against unserved

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defendants.

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For all of the foregoing reasons, plaintiff’s request for permission to serve

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defendant Shaked by mail is GRANTED. The request to serve defendant Khounmany by
ORDER REGARDING SERVICE BY MAIL - 3

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mail is DENIED. The alternative request for a fourteen day extension of the service

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deadline to serve Khounmany is GRANTED. Plaintiff shall, on or before

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July 5, 2017, file proofs of service as to defendants Shaken and Khounmany or a second

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motion detailing the efforts made toward effecting personal service and establishing good

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cause for a further extension of time. Failure to timely file or to make the required

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showing will result in dismissal of the claims against any unserved defendants.

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Dated this 28th day of June, 2017.

A

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Robert S. Lasnik
United States District Judge

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