Benson Mills Inc v. Deng

Filing 12

ORDER granting 7 Motion for Leave to Serve by Electronic Mail, signed by Judge David W. Christel. (GMR)

Case 2:21-cv-01467-DWC Document 12 Filed 05/09/22 Page 1 of 4

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BENSON MILLS INC.,
Plaintiff,

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CASE NO. 2:21-CV-1467-DWC
ORDER GRANTING MOTION TO
SERVE BY ELECTRONIC MAIL

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v.

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LESONG DENG,
Defendant.

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On October 28, 2021, Plaintiff filed this copyright infringement action alleging
Defendant Lesong Deng infringed on Plaintiff’s copyrighted “Twinkle Web” design. See Dkt. 1,
5. On March 25, 2022, Plaintiff Benson Mills, Inc. filed a Motion Requesting Leave to Serve
Defendant Lesong Deng by Electronic Mail. Dkt. 7. After consideration of the relevant record,
the Motion (Dkt. 7) is granted.
I.

Factual Background

Defendant is a resident of China. Dkt. 5, ¶ 2. Plaintiff’s counsel sent letters -- including
copies of the Summons, the Amended Complaint, Exhibits A-M to the Amended Complaint, and
the Report on the filing of an Action regarding Copyright -- to Defendant’s known addresses.

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ORDER GRANTING MOTION TO SERVE BY
ELECTRONIC MAIL - 1

Case 2:21-cv-01467-DWC Document 12 Filed 05/09/22 Page 2 of 4

1 Dkt. 8, Kolter Dec., ¶ 3. FedEx tracking shows an update of “Shipment Refused by recipient”
2 and UPS tracking shows “unable to deliver.” Id. Plaintiff and Defendant have been
3 communicating through electronic mail (e-mail). See Dkt. 8, Kolter Dec.; Dkt. 8-2 – 8-7.
4 Plaintiff now seeks the Court’s permission to serve Defendant through e-mail. Dkt. 7.
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II.

Discussion

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Service of process on an individual—or any corporation, partnership, or other

7 unincorporated association, see Fed. R. Civ. P. 4(h)(2)—outside the United States is governed by
8 Federal Rule of Civil Procedure 4(f). Plaintiff seeks an order permitting service under Federal
9 Rule of Civil Procedure 4(f)(3), which must be (1) directed by the court, and (2) not prohibited
10 by international agreement. Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th
11 Cir. 2002). In reviewing Rule 4(f)(3), the Ninth Circuit found that “[n]o other limitations are
12 evident from the text.” Id. Rule 4(f) does not “create a hierarchy of preferred methods of service
13 of process” and, “court -directed service under Rule 4(f)(3) is as favored as service available
14 under Rule 4(f)(1) or 4(f)(2).” Id. at 1015. Under Rule 4(f)(3), a method of service must also
15 comport with constitutional notions of due process and must not violate any international
16 agreement. Id. at 1015, 1016. A method of service comports with due process if it is “reasonably
17 calculated, under all the circumstances, to apprise interested parties of the pendency of the action
18 and afford them an opportunity to present their objections.” Id. at 1016, 1017 (quoting Mullane
19 v. Cent. Hanover Bank & Trust, 339 U.S. 306, 314 (1950)).
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“[T]rial courts have authorized a wide variety of alternative methods of service including

21 publication, ordinary mail, mail to the defendant’s last known address, delivery to the
22 defendant’s attorney, telex, and most recently, email.” Id. at 1016. However, in effectuating
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ORDER GRANTING MOTION TO SERVE BY
ELECTRONIC MAIL - 2

Case 2:21-cv-01467-DWC Document 12 Filed 05/09/22 Page 3 of 4

1 service of process under Fed.R.Civ.P. 4(f)(3), a plaintiff must obtain prior court approval for the
2 alternative method of service. Brockmeyer v. May, 383 F.3d 798, 806 (9th Cir. 2004).
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Here, Plaintiff asserts that service through email is not prohibited by international

4 agreement and comports with due process because it is reasonably calculated to inform
5 Defendant of the impending action. See Dkt, 7.
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First, numerous courts have allowed alternative service by electronic communications to

7 defendants located in China. See Rubie's Costume Co., Inc. v. Yiwu Hua Hao Toys Co., 2019 WL
8 6310564, at *3 (W.D. Wash. Nov. 25, 2019) (collecting cases). As a result, the Court finds
9 Plaintiff’s proposed method of service by e-mail is not expressly prohibited by international
10 agreement.
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Second, the Court finds Plaintiff’s proposed method of service by e-mail comports with

12 due process in this case. The evidence shows Plaintiff does not have a valid address upon which
13 to serve Defendant. When Plaintiff’s counsel attempted to mail Defendant copies of the
14 Summons, the Amended Complaint, Exhibits A-M to the Amended Complaint, and the Report
15 on the filing of an Action regarding Copyright to Defendant’s known addresses, the letters were
16 unable to be delivered. Dkt. 8, Kolter Dec., ¶ 3. Defendant conducts business through the
17 internet, has been communicating with Plaintiff through e-mail, and has acknowledged this
18 lawsuit. See Dkt. 8 – 8-7; 10 – 10-2. Moreover, there is some evidence Defendant is attempting
19 to evade service. See Dkt. 8, Kolter Dec., ¶ 9. For these reasons, Plaintiff has shown service
20 through e-mail will give Defendant sufficient notice and opportunity to respond.
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As service by e-mail is not expressly prohibited by international agreement and comports

22 with due process in this case, the Court finds service via e-mail is appropriate.
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ORDER GRANTING MOTION TO SERVE BY
ELECTRONIC MAIL - 3

Case 2:21-cv-01467-DWC Document 12 Filed 05/09/22 Page 4 of 4

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III.

Conclusion

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For the above stated reasons, Plaintiff’s Motion (Dkt. 7) is granted. Defendant Lesong

3 Deng may be served by e-mailing copies of the Summons and Amended Complaint to
4 Defendant’s e-mail addresses as follows: [e-mail], [e-mail], and
5 [e-mail] by no later than May 16, 2022.
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Dated this 9th day of May, 2022.

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A

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David W. Christel
United States Magistrate Judge

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ORDER GRANTING MOTION TO SERVE BY
ELECTRONIC MAIL - 4