Amazon.com Inc et al v. Dhuog et al

Filing 37

ORDER granting Plaintiffs' 34 Motion for Alternative Service. Amazon is ORDERED to complete service and file proof of service by 6/17/2024. Signed by Hon. S. Kate Vaughan. (SB)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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AMAZON.COM INC.; and
AMAZON.COM SERVICES LLC,
Plaintiff,

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v.
QIANG LIU, an individual; YALIN WU, an
individual; LIAO DENGKUN, an
individual; and DOES 1-10,

ORDER GRANTING EX PARTE
MOTION FOR ALTERANTIVE
SERVICE

Defendant.

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INTRODUCTION

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Case No. C23-0484-JHC-SKV

Plaintiffs Amazon.com, Inc., and Amazon.com Services LLC (collectively “Amazon”)

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filed an Ex Parte Motion for Alternative Service. Dkt. 34. Amazon seeks an order authorizing

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completion of service of process by email on Defendants Qiang Liu, Yalin Wu, and Liao

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Dengkun (collectively “Defendants”). The Court, having considered the motion, all documents

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filed in support, and the balance of the record, herein GRANTS Plaintiffs’ motion for the reasons

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set forth below.

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BACKGROUND

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This matter involves claims for misrepresentation of copyright infringement, breach of

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contract, tortious interference with contractual relationship, fraud, violation of the Washington
Consumer Protection Act, and claims under the Lanham Act for cancellation of trademark, and
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civil liability for false or fraudulent trademark registration. See Dkts. 1 & 28. Specifically,

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Amazon alleges Defendants obtained fraudulent trademark registrations in order to gain access to

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Amazon’s intellectual property protection services, and then abused Amazon’s notice-and-

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takedown procedures to deceptively remove product listings in the Amazon Store in violation of

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Amazon’s rights and policies. Id.

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After conducting third-party discovery and investigation, Amazon identified Defendants

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by name and narrowed their locations to China, but has not located valid physical addresses for

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service on any Defendant. See Dkt. 35, ¶¶2-7. Amazon did, however, uncover email addresses

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linked to Defendants through Amazon selling accounts, a payment service provider, and the

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United States Patent and Trademark Office, and now seeks an order from the Court granting

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leave to serve Defendants through the following email addresses: (1) Defendant Qiang Liu:

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[e-mail]; and [e-mail]; (2) Defendant Liao Dengkun:

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[e-mail]; [e-mail]; and [e-mail]; and (3) Defendant

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Yalin Wu: [e-mail]; and [e-mail]. See Dkts. 35 & 36. In order to

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confirm that each of these email accounts remain functional, Amazon, on May 23, 2024, emailed

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Defendants at these email addresses. Dkt. 35, ¶8. Amazon did not receive any error notices or

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bounce back messages in response to the emails. Id. Amazon now seeks to serve Defendants

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using RPost (www.rpost.com), an online service for service of process. Id., ¶9.

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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)

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Amazon asserts its inability to locate a physical address for Defendants. See Dkt. 13.

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Amazon’s investigation shows Defendants are likely located in China. Id. China has been a

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party to the Hague Convention since 1992. See Contracting Parties to Hague Convention,

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https://www.hcch.net/en/instruments/ conventions/status-table/?cid=17 (last visited May 31,

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2024). 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 Amazon has been unable to locate a physical

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address for Defendants, Amazon could not utilize methods authorized by the Hague Convention.

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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. Yew

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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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Amazon here demonstrates 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. Amazon therefore shows 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 Defendants through email

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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 Defendants of this

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action and afford them the opportunity to object. Mullane, 339 U.S. at 314.

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Amazon shows how Defendants are connected to the email addresses through which

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Amazon now seeks to effectuate service. Dkt. 13, ¶¶3-6. Amazon also shows that the email

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addresses remain active, as demonstrated by test emails sent successfully and with no indication

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of a failure to deliver. Id., ¶8. Amazon argues that this showing supports the conclusion that

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service on Defendants by email is reasonably calculated to provide 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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less clear given the nature of the allegations in this case. That is, Amazon alleges Defendants

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obtained fraudulent trademark registrations and conspired in a scheme to abuse Amazon’s

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intellectual-property protection services and used multiple email addresses in the course of that

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scheme. Amazon has, however, verified that the email addresses used in the alleged scheme

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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, for example, 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 defendants

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were likely to receive notice if served by email and due process concerns satisfied. See, e.g.,

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Amazon.com, Inc. v. Pengyu Bldg. Materials, No. C21-0358-JNW-SKV, 2023 WL 4131609, at

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*3-4 (W.D. Wash. June 22, 2023); KexleWaterFilters, 2023 WL 3902694, at *2 (W.D. Wash.

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May 31, 2023); Amazon.com Inc. v. Bamb Awns, No. C22-402-MLP, 2023 WL 2837076, at *3

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(W.D. Wash. Apr. 7, 2023). Accord Bright Sols. for Dyslexia, Inc. v. Lee, C15-1618, 2017 WL

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10398818, at *7 (N.D. Cal. Dec. 20, 2017) (finding service by email proper “because Defendants

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structured their counterfeit business such that they could only be contacted by email[,]” the court

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authorized service by email, and the emails sent did not bounce back as undeliverable), report

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and 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 of

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the lawsuit, the Court denied service by email upon finding a failure to demonstrate the email

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ALTERANTIVE SERVICE - 5

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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, 2023 WL 3902694, at *2. See also Amazon.com, Inc. v.

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Tian Ruiping, No. C21-0159-TL, 2022 WL 486267, at *3-5 (W.D. Wash. Feb. 17, 2022)

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(denying alternative service by email where plaintiffs had obtained physical addresses for

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defendants, but did not demonstrate the addresses were incorrect or inadequate for service, did

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not show any defendant was aware of the pending action, and did not indicate any attempts to

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contact defendants, including attempted communication via email, through selling accounts, or

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by any other means).
Amazon here demonstrates it identified Defendants as having taken part in the alleged

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scheme at issue in their claims, shows the connections between Defendants and the email

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addresses, including that the addresses were used by Defendants to register with Amazon, a

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payment service provider, and the United States Patent and Trademark Office, Dkt. 35, ¶¶3-4 &

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Dkt. 36, ¶6, and demonstrates that the email addresses remain active. Together, these

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circumstances provide sufficient indicia that Defendants are likely to receive notice if served by

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email. The Court therefore finds service through email is reasonably calculated to apprise

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Defendants of this action and provide an opportunity to respond, and thus satisfies concerns of

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due process.

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CONCLUSION
The Court, in sum, GRANTS Amazon’s Ex Parte Motion for Alternative Service. Dkt.

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34. Specifically, the Court authorizes Amazon to serve Defendants at the following email

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addresses: (1) Defendant Qiang Liu: [e-mail]; and [e-mail]; (2)

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ALTERANTIVE SERVICE - 6

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Defendant Liao Dengkun: [e-mail]; [e-mail]; and

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[e-mail]; and (3) Defendant Yalin Wu: [e-mail]; and

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[e-mail]. Amazon is ORDERED to complete service and file proof of service by

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June 17, 2024.

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Dated this 3rd day of June, 2024.

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A

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S. KATE VAUGHAN
United States Magistrate Judge

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