Amazon.com Inc et al v. Ananchenko et al
Filing
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ORDER granting Plaintiffs' 12 Motion for Alternative Service. Plaintiffs are ORDERED to complete service and file proof of service by 2/16/2024. Signed by Hon. Michelle L. Peterson. (MJV)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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AMAZON.COM INC., et al.,
Plaintiffs,
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ORDER
v.
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Case No. C23-1703-TL-MLP
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VICTORIIA ANANCHENKO, et al.,
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Defendants.
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This matter is before the Court on Plaintiffs Amazon.com, Inc., Amazon.com Services
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LLC, The James Bryson Shepherd Trust, and Berkey International LLC’s (collectively,
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“Plaintiffs”) Ex Parte Motion for Alternative Service (“Plaintiffs’ Motion”). (Pls.’ Mot. (dkt.
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# 12).) No defendant has yet appeared in this action. Having considered Plaintiffs’ submissions,
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the governing law, and the balance of the record, the Court GRANTS Plaintiffs’ Motion (dkt.
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# 12).
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I.
BACKGROUND
On November 7, 2023, Plaintiffs filed a complaint alleging Defendants Victoriia
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Ananchenko, who controlled Amazon Selling Account “CloudMK”; Yevhenii Kolisnyk, who
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controlled Amazon Selling Account “Beyonders”; Yurii Smulskyi, who controlled Amazon
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Selling Account “TiFlowers”; Nikita Kuznetsov, who controlled Amazon Selling Account
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“Tayler Weedon” (collectively, “Defendants”); and “Does 1-10” acted in concert to sell
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counterfeit Berkey-branded products. (Compl. (dkt. # 1) at ¶¶ 11-15, 39.) Plaintiffs allege
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Defendants reside in Ukraine. (Id. at ¶¶ 11-14.)
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To identify and locate Defendants, Plaintiffs used information Defendants provided in
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opening their Amazon Selling Accounts in addition to working with a private investigator and
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seeking third-party discovery from the provider of the virtual bank accounts Defendants linked
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with their Amazon Selling Accounts. (Rainwater Decl. (dkt. # 13) at ¶¶ 2-3.) Plaintiffs’
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investigation confirmed Defendants were located in Ukraine, but physical addresses they had
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provided were nonexistent or unrelated to Defendants. (Id. at ¶ 4.) Defendants accessed their
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bank accounts from IP addresses in Ukraine until March 2022, “near in time to the Russian
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invasion of Ukraine[.]” (Id. at ¶ 5.) Subsequently, Defendants’ IP logins traced to Russia, the
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Netherlands, and the United States, but Plaintiffs believe these logins were through virtual
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private networks that can hide geographic location. (Id.) Plaintiffs have been unable to locate
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valid physical addresses for Defendants. (Id. at ¶¶ 5-6.)
II.
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DISCUSSION
Plaintiffs seek to serve Defendants Ananchenko, Kolisnyk, and Smulskyi through the
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email addresses they registered with their Amazon Selling Accounts. (Pls.’ Mot. at 5; see Garrett
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Decl. (dkt. # 14) at ¶¶ 4-5.) On January 19, 2024, Plaintiffs sent test emails to these addresses
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and “received no error notices, bounce back messages, or other indications that the test emails
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failed to deliver[.]” (Rainwater Decl. at ¶ 7.)
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The test email sent to Defendant Kuznetsov’s email address registered with the “Tayler
Weedon” Amazon Selling Account, however, generated an error notice in response. (Rainwater
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Decl. at ¶ 8.) The “Tayler Weedon” Amazon Selling Account “also communicated with Amazon
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using a second email address, hanhtrinhyeuthuonggg05@gmail.com . . . regarding seller
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feedback published on the Selling Account’s seller profile page.” (Garret Decl. at ¶ 6 (footnote
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omitted).) On January 26, 2024, Plaintiffs sent a test email to this second address and received no
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error notice. (Rainwater Decl. at ¶ 8.) Plaintiffs seek to serve Defendant Kuznetsov at this email
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address. (Pls.’ Mot. at 5.)
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A.
Legal Standards
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Federal Rule of Civil Procedure 4(f) permits service of process on individuals in foreign
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countries by: (1) internationally agreed methods such as those authorized by the Hague
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Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
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Commercial Matters (the “Hague Convention”); (2) if there is no internationally agreed means,
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in accordance with the foreign country’s law; or (3) by “other means not prohibited by
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international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). To obtain a court order
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under Rule 4(f)(3), a plaintiff must “demonstrate that the facts and circumstances of the present
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case necessitated the district court’s intervention.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d
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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.” Rio, 284 F.3d at 1016. “To meet this
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requirement, the method of service crafted by the district court must be ‘reasonably calculated,
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under all the circumstances, to apprise interested parties of the pendency of the action and afford
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them an opportunity to present their objections.’” Id. at 1016-17 (quoting Mullane v. Cent.
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Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).
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B.
Rule 4(f)
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The Court concludes Plaintiffs have adequately shown the Court’s intervention is
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necessary. Despite a thorough investigation through multiple avenues, Plaintiffs have been
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unable to locate valid physical addresses for Defendants. (Rainwater Decl. at ¶¶ 5-6.) Email
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addresses are the only valid contact information Plaintiffs have been able to identify. (Id. at ¶ 6.)
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Plaintiffs contend Rule 4(f)(3) and the Hauge Convention allow for service by email on
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defendants located in Ukraine. (Pls.’ Mot. at 6.) Ukraine, like the United States, is a party to the
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Hague Convention. 1 The Hague Convention expressly “shall not apply where the address of the
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person to be served with the document is not known.” Hague Convention, art. 1. 2 Plaintiffs here
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have been unable to locate physical addresses for Defendants, and thus, could not utilize methods
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authorized by the Hague Convention. (Rainwater Decl. at ¶ 6.)
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Nevertheless, whether or not the Hague Convention applies, courts in the Ninth Circuit
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have concluded that email service on individuals located in Ukraine is not prohibited by it or any
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other international agreement. See Williams-Sonoma Inc. v. Friendfinder Inc., 2007 WL
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1140639, at *2 (N.D. Cal. Apr. 17, 2007) (“service via email [on defendants in Ukraine] is not
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prohibited by an international agreement”); Davy v. Paragon Coin, Inc., 2020 WL 1539617, at
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*1-2 (N.D. Cal. Feb. 5, 2020) (permitting service by email on defendant located in Ukraine
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whose physical address could not be obtained). The Court therefore concludes that service by
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email is not prohibited by international agreement. Plaintiffs have shown that an order permitting
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service by email would comport with Rule 4(f).
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See Contracting Parties, available at https://www.hcch.net/en/instruments/conventions/statustable/?cid=17 (last viewed February 7, 2024).
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Available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=17 (last viewed February 7,
2024).
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C.
Due Process
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The Court next considers whether service of process using email addresses used to
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communicate with Amazon with regard to Defendants’ Amazon Selling Accounts comports with
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constitutional due process—that is, whether the method of service is “reasonably calculated,
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under all the circumstances, to apprise interested parties of the pendency of the action and afford
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them an opportunity to present their objections.” Mullane, 339 U.S. at 314.
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Plaintiffs contend email service comports with due process because: (1) Defendants used
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the email addresses to communicate with Amazon in conducting their online businesses; and (2)
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test emails confirmed that the email addresses remain functional. (Pls.’ Mot. at 7-8.) Plaintiffs
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point to Facebook, Inc. v. Banana Ads, LLC, where a court authorized service via email on
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foreign defendants who “rely on electronic communications to operate their businesses” and for
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whom plaintiff had “valid email addresses[.]” 2012 WL 1038752, at *2 (N.D. Cal. Mar. 27,
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2012). In that case, however, it appears that the defendants’ businesses were ongoing and used
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internet domain names that, when registered, “required [defendants] to provide accurate contact
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information and to update that information.” Id. at *1.
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The situation is somewhat less clear here, however, as the Amazon Selling Accounts at
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issue are no longer operating. (See Compl. at ¶ 45 (“After Amazon verified Defendants’ sale of
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counterfeit Berkey products, it promptly blocked Defendants’ Selling Accounts.”).) It is unclear
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when the accounts were blocked but it appears all of the accounts were operating through at least
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April or May 2023, when Amazon sent Berkey sample products to determine if they were
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counterfeit. (See id., Schedule 1.)
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Nevertheless, Plaintiffs provide evidence that the email addresses they propose effecting
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service through were actively used in operating the Amazon Selling Accounts. Individuals used
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the emails to communicate with Amazon in conducting their online businesses. (See Garrett
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Decl. at ¶¶ 5-6.) And Plaintiffs have verified that the email addresses remain active. (See
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Rainwater Decl. at ¶¶ 7-8.) This provides some evidence that Defendants are still using those
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addresses.
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In a similar situation in Bright Solutions for Dyslexia, alternative service by email was
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used where plaintiffs were “unable to locate [d]efendants and believed they may have moved to
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China.” Bright Sols. for Dyslexia, Inc. v. Lee, 2017 WL 10398818, at *4 (N.D. Cal. Dec. 20,
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2017), report and recommendation adopted, 2018 WL 4927702 (N.D. Cal. Mar. 26, 2018). After
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issuing takedown notices, the plaintiffs obtained email addresses associated with eBay online
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seller accounts that defendants had used to sell allegedly counterfeit products. Id. at *3. “No
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errors were received” when plaintiffs sent test emails to two of the addresses. Id. The court
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granted plaintiffs’ motion for alternative service by email, and granted default judgment after
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defendants failed to respond even though “the emails had been successfully delivered with no
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errors.” Id. at *4. The court concluded “email service was proper because [d]efendants structured
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their counterfeit business such that they could only be contacted by email” and, when served by
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email, “[t]hese emails did not bounce back.” Id. at *7.
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In contrast, in Amazon.com Inc. v. KexleWaterFilters, this Court denied alternative
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service by email because plaintiffs had not shown sufficient “indicia that the defendants would in
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fact receive notice of the lawsuit if the plaintiffs served them by email.” 2023 WL 2017002, at
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*4 (W.D. Wash. Feb. 15, 2023). The approach in Bright Solutions for Dyslexia was endorsed by
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this Court in that case, but in KexleWaterFilters, the plaintiffs had “not demonstrated that the
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email addresses associated with [d]efendants’ Selling Accounts are still valid[.]” Id. Plaintiffs
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were permitted to “renew their motion with evidence of recent communications to [d]efendants
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that demonstrates that service by email is a reliable method to provide [d]efendants with notice
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of the pendency of this action.” Id.
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Here, as in Bright Solutions for Dyslexia, Plaintiffs have identified email addresses that
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Defendants used in their online businesses, and verified that those email addresses remain
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functional. As in Bright Solutions for Dyslexia, Defendants structured their counterfeit
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businesses such that they can only be contacted by email. Together, these circumstances provide
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sufficient indicia that Defendants are likely to receive notice if served through the email
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addresses used in conjunction with their Amazon Selling Accounts.
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Moreover, Plaintiffs propose to “serve Defendants using an online service for service of
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process, RPost (www.rpost.com), that provides proof of authorship, content, delivery, and
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receipt[.]” (Rainwater Decl. at ¶ 9.) Service via RPost should, according to Plaintiffs’
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representations to the Court, provide evidence as to whether service by email was, in fact,
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received. This offers reassurance that if the email addresses are not being monitored and used,
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then service will not be erroneously deemed completed.
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The Court concludes service via the email addresses is reasonably calculated to apprise
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Defendants of the pendency of this action and provide them an opportunity to respond.
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Accordingly, the Court finds due process concerns are satisfied.
III.
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CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion (dkt. # 12). Plaintiffs
are authorized to serve the following Defendants at the following email addresses:
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Defendant Victoriia Ananchenko: xbinhgo@gmail.com
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Defendant Yevhenii Kolisnyk: bartcamarenokkc59@gmail.com
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Defendant Yurii Smulskyi: flowerstec33@gmail.com
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Plaintiffs are ORDERED to complete service and file proof of service by February 16,
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Defendant Nikita Kuznetsov: hanhtrinhyeuthuonggg05@gmail.com
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The Clerk is directed to send copies of this Order to the parties and to the Honorable
Tana Lin.
Dated this 7th day of February, 2024.
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A
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MICHELLE L. PETERSON
United States Magistrate Judge
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