Amazon.com Inc et al v. Pengyu Building Materials et al
Filing
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ORDER granting Plaintiffs' 20 Ex Parte Motion for Alternative Service. Plaintiffs are ORDERED to complete service and file proof of service by 7/6/2023. Signed by Hon. S. Kate Vaughan. (SB)
Case 2:21-cv-00358-JNW-SKV Document 26 Filed 06/22/23 Page 1 of 8
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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AMAZON.COM, INC., et al.,
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Case No. C21-0358-JNW-SKV
Plaintiffs,
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v.
PENGYU BUILDING MATERIALS, et al.,
ORDER GRANTING PLAINTIFFS’
EX PARTE MOTION FOR
ALTERNATIVE SERVICE
Defendants.
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INTRODUCTION
Plaintiffs Amazon.com, Inc. (Amazon) and GoPro, Inc. (GoPro) filed an Ex Parte Motion
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for Alternative Service. Dkt. 20. They seek an order authorizing completion of service of
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process by email on Defendants Jing Chen and Jinfang Fang. The Court, having considered the
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motion, all documents filed in support, and the balance of the record, herein GRANTS Plaintiffs’
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motion for the reasons set forth below.
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BACKGROUND
This matter involves allegations of trademark infringement, false designation of origin
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and false advertising under the Lanham Act, and violations of the Washington Consumer
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Protection Act associated with the sale of counterfeit GoPro camera accessories in the
ORDER GRANTING PLAINTIFFS’ EX PARTE
MOTION FOR ALTERNATIVE SERVICE - 1
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Amazon.com store (“Amazon Store”). See Dkts. 1 & 16. In filing suit, Plaintiffs named as
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Defendants: (1) Pengyu Building Materials; (2) Xue Minghai, d/b/a Pengyu Building
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Materials/Wholesale of Outdoor; (3) Chentaotao, d/b/a Nana Gyenfie/Explore the Outdoors; (4)
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Nana Gyenfie; (5) Hu Wei; (6) Zhao Ronglin; (7) Li Zhongyi; (8) Pan Linxing; and (9) Zhu
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Shaochuan. Dkt. 1. They alleged Defendants sold counterfeit goods through a number of
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different Amazon “Selling Accounts.” Id.
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Through investigation, Plaintiffs discovered Defendants had provided invalid addresses
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and telephone numbers in connection with the Selling Accounts, and that the Selling Accounts
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were owned by entities located in China. Dkt. 21, ¶¶2-11. As authorized by the Court, Plaintiffs
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conducted third-party discovery, including discovery on various email service providers and a
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financial institution, each of which had been used by one or more Defendants in connection with
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their Selling Accounts. Id., ¶¶12-18.
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The discovery showed that six of seven Selling Accounts were linked to two Payoneer
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Inc. (Payoneer) accounts held by Chen and Fang. Id., ¶18. Specifically, discovery showed that
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Chen is responsible for a Payoneer account linked to the Explore the Outdoors Selling Account,
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while Fang is responsible for the following five Selling Accounts: Pengyu Building
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Materials/Wholesale of Outdoor; The Adventure – USA; LZI & Outdoor Adventure Wholesale;
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PLX Sports Shop; and Quality is Job 1. Id. The discovery also showed that the Payoneer
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accounts received disbursements from the respective Selling Accounts. Id., ¶¶18-19. Given this
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information, Plaintiffs filed a First Amended Complaint adding Chen and Fang as Defendants.
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Dkt. 16.
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Plaintiffs also investigated Chen and Fang’s whereabouts for service. Payoneer’s
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production included physical addresses located in China for Chen and Fang, and showed that the
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IP addresses from which Chen and Fang accessed their Payoneer accounts trace back to China.
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Id., ¶¶20-21. However, through further investigation, Plaintiffs found the address associated
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with Chen does not exist and that the address associated with Fang housed a grain and feed shop
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with no apparent ties to this action. Id., ¶20.
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The discovery did not reveal any information on the Defendants named in the original
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Complaint. Id., ¶23. Nor did Payoneer’s document production link the seventh Selling Account
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at issue – MrHu Shop – with Chen or Fang. Id., ¶23 & n.2. Plaintiffs, accordingly, anticipate
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eventually dismissing Defendants other than Chen and Fang, and do not currently seek to serve
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the email address found to be associated with the MrHu Shop Selling Account. Id.
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As related to Chen and Fang, Plaintiffs contend it can be inferred from the discovery that
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they are responsible for the six Selling Accounts described above. Id., ¶19. They identify the
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following email addresses as associated with those accounts: (1) Xueminghai96@sina.com
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(Pengyu Building Materials); (2) Taotaochen83@sina.com (Explore the Outdoors); (3)
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Zhaoronglin12@sina.com (The Adventure – USA); (4) lizhongyii@163.com (LZY & Outdoor
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Adventure Wholesale); (5) Panlinxing87@163.com (PLX Sports Shop); and (6)
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Zhushaochuan86@hotmail.com (Quality is Job 1). Dkt. 22, ¶6. They assert that Amazon’s
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records reflect that Defendants provided the above-described email addresses in order to register
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and access the Selling Accounts, that they regularly received and responded to communications
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from Amazon using the addresses, and that the addresses are the primary means of
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communication from Amazon to the individuals or entities associated with the accounts. Id.,
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¶¶4-7. They also provide more specific information as to the times during which the addresses
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were used and the time the associated Selling Accounts were suspended. Id., ¶¶8-13.
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On June 7, 2023, Plaintiffs sent emails to each of the email addresses described above
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using RPost, an online service that provides proof of delivery emails. Dkt. 25, ¶2. The emails
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apprised Defendants of the pending actions and provided copies of the Amended Complaint,
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civil cover sheet, and summonses. Id. Plaintiffs did not receive error notices, bounce-back
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messages, or any other indication that the emails had not been delivered. Id. They received
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confirmation via RPost that the emails were successfully delivered. Id. They now move for an
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order authorizing them to complete service of process on Chen and Fang by email.
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DISCUSSION
Federal Rule of Civil Procedure 4(f) permits service of process on individuals in foreign
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countries by: (1) internationally agreed means of service reasonably calculated to give notice,
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such as those authorized by the Hague Convention on the Service Abroad of Judicial and
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Extrajudicial Documents; (2) if there is no internationally agreed means, in accordance with the
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foreign country’s law; or (3) “by other means not prohibited by international agreement, as the
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court orders.” Fed. R. Civ. P. 4(f)(3). To obtain a court order under Rule 4(f)(3), a plaintiff must
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“demonstrate that the facts and circumstances of the present case necessitate[] the district court’s
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intervention.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002).
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In addition to the requirements of Rule 4(f), “a method of service of process must also
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comport with constitutional notions of due process.” Id. “To meet this requirement, the method
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of service crafted by the district court must be ‘reasonably calculated, under all the
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circumstances, to apprise interested parties of the pendency of the action and afford them an
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opportunity to present their objections.’” Id. at 1016-17 (quoting Mullane v. Cent. Hanover
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Bank & Trust Co., 339 U.S. 306, 314 (1950)).
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A.
Rule 4(f)
Plaintiffs assert their inability to locate a physical address for Chen or Fang. See Dkt. 21.
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Plaintiffs’ investigation revealed that Chen and Fang reside at unknown locations overseas,
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likely in China. China has been a party to the Hague Convention since 1992. See Contracting
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Parties to Hague Convention, https://www.hcch.net/en/instruments/conventions/status-
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table/?cid=17 (last visited June 21, 2023).
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The Hague Convention expressly “shall not apply where the address of the person to be
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served with the document is not known.” Hague Convention, T.I.A.S. No. 6638 (Feb. 10, 1969),
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20 U.S.T. 361, 1969 WL 97765. Here, because they have been unable to locate a physical
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address for Chen or Fang, Plaintiffs could not utilize methods authorized by the Hague
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Convention. Moreover, because the Convention does not apply, it does not bar service by email.
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Whether or not the Hague Convention applies, this Court and other courts have
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concluded that email service on individuals located in China is not prohibited by the Hague
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Convention or by any other international agreement. See, e.g., Rubie’s Costume Co., Inc. v. Yiwu
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Hua Hao Toys Co., C18-1530-RAJ, 2019 WL 6310564, at *3 (W.D. Wash. Nov. 25, 2019)
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(email service in China “not expressly prohibited by international agreement”). See also
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Amazon.com, Inc. v. Dafang HaoJiafu Hotpot Store, No. C21-0766-RSM, 2021 WL 4307067, at
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*1-2 (W.D. Wash. Sept. 22, 2021) (stating “courts in this district regularly authorize requests for
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service by email on foreign defendants in countries that are parties to the Convention” and
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granting motion for alternative service in China and Hong Kong).
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Plaintiffs here demonstrate the need for the Court’s intervention. The Court further finds
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that service by email is not prohibited by international agreement. Plaintiffs therefore show that
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an Order permitting service by email comports with Rule 4(f).
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B.
Due Process
The Court must also determine whether service of process on Chen and Fang through
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email would comport with due process. That is, the Court must consider whether this method of
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service is “reasonably calculated, under all the circumstances,” to apprise Chen and Fang of this
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action and afford them the opportunity to object. Mullane, 339 U.S. at 314.
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Plaintiffs show that Chen and Fang are responsible for Payoneer accounts associated with
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the Selling Accounts at issue and that the above-described email addresses were used to conduct
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business on Amazon, serve as the primary means of communication between Amazon and
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Defendants, and that the addresses remain active, as demonstrated by test emails sent
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successfully and with no indication of a failure to deliver. See Dkt. 21, ¶¶18-21; Dkt. 22, ¶¶5-13;
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Dkt. 25, ¶2. Plaintiffs argue that this showing supports the conclusion that service on Chen and
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Fang by email is reasonably calculated to provide them with actual notice.
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As found by the Ninth Circuit, the decision to allow service by email lies within the
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district court’s discretion where the defendant has “structured its business such that it could be
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contacted only via its email address” and “designated its email address as its preferred contact
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information.” Rio Props., Inc., 284 F.3d at 1018 (emphasis in original). The situation here is
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somewhat less clear because Amazon suspended the Selling Accounts at issue. Dkt. 22, ¶¶8-13.
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As a result, Chen and Fang no longer conduct business with Amazon through the accounts.
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Plaintiffs have, however, verified that the email addresses used to register and otherwise
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associated with the Selling Accounts remain active.
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This Court has concluded that the due process requirement for alternative service by
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email is satisfied “when the plaintiff demonstrates that the email addresses at issue are valid and
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are successfully receiving messages.” Amazon.com Inc. v. KexleWaterFilters, C22-1120-JLR,
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2023 WL 2017002, at *4 (W.D. Wash. Feb. 15, 2023). The Court has, accordingly, authorized
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service by email where plaintiffs identified email addresses defendants used for Amazon Selling
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Accounts and verified the addresses remained active, finding sufficient indicia that the
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defendants were likely to receive notice if served by email and due process concerns satisfied.
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See, e.g., KexleWaterFilters, 2023 WL 3902694, at *2 (W.D. Wash. May 31, 2023);
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Amazon.com Inc. v. Bamb Awns, No. C22-402-MLP, 2023 WL 2837076, at *3 (W.D. Wash.
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Apr. 7, 2023). Accord Bright Sols. for Dyslexia, Inc. v. Lee, C15-1618, 2017 WL 10398818, at
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*7 (N.D. Cal. Dec. 20, 2017) (finding service by email proper “because Defendants structured
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their counterfeit business such that they could only be contacted by email[,]” the court authorized
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service by email, and the emails sent did not bounce back as undeliverable), report and
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recommendation adopted, 2018 WL 4927702 (N.D. Cal. Mar. 26, 2018). In contrast, where
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plaintiffs did not indicate whether they had attempted to contact any defendants using email
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addresses associated with Amazon Selling Accounts, nor represented the defendants had notice
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of the lawsuit, the Court denied service by email upon finding a failure to demonstrate the email
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addresses were still valid. KexleWaterFilters, 2023 WL 2017002, at *2, 4 (permitting plaintiffs
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to “renew their motion with evidence of recent communications to Defendants that demonstrates
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that service by email is a reliable method to provide Defendants with notice of the pendency of
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[the] action.”), renewed motion granted, KexleWaterFilters, 2023 WL 3902694, at *2. See also
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Amazon.com, Inc. v. Tian Ruiping, No. C21-0159-TL, 2022 WL 486267, at *3-5 (W.D. Wash.
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Feb. 17, 2022) (denying alternative service by email where plaintiffs had obtained physical
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addresses for defendants, but did not demonstrate the addresses were incorrect or inadequate for
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service, did not show any defendant was aware of the pending action, and did not indicate any
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attempts to contact defendants, including attempted communication via email, through Selling
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Accounts, or by any other means).
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Plaintiffs here demonstrate that all physical addresses obtained in relation to Chen and
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Fang were incorrect or otherwise inadequate for service. They also demonstrate that email
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addresses used by Chen and Fang to register Amazon Selling Accounts, serving as the primary
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means of communication with Amazon, and used to conduct business in the Amazon Store
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remain active. Together, these circumstances provide sufficient indicia that Chen and Fang are
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likely to receive notice if served by email. The Court therefore finds service through email is
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reasonably calculated to apprise Chen and Fang of this action and provide an opportunity to
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respond, and thus satisfies concerns of due process.
CONCLUSION
The Court, in sum, GRANTS Plaintiffs’ Ex Parte Motion for Alternative Service. Dkt.
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20. Specifically, the Court authorizes Plaintiffs to serve Defendants through the following email
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addresses: (1) Defendant Jing Chen: Taotaochen83@sina.com; and (2) Defendant Jinfang Fang:
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(a) Xueminghai96@sina.com; (b) Zhaoronglin12@sina.com; (c) Lizhongyii@163.com; (d)
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Panlinxing87@163.com; and (e) Zhushaochuan86@hotmail.com. Plaintiffs are ORDERED to
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complete service and file proof of service by July 6, 2023.
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Dated this 22nd day of June, 2023.
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A
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S. KATE VAUGHAN
United States Magistrate Judge
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ORDER GRANTING PLAINTIFFS’ EX PARTE
MOTION FOR ALTERNATIVE SERVICE - 8
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