Nintendo of America Inc v. Minh

[7] UNITED STATES DISTRICT COURT [8] WESTERN DISTRICT OF WASHINGTON AT TACOMA [9] 10 NINTENDO OF AMERICA, INC., CASE NO. 2:20-cv-01707-RSM-JRC 11 Plaintiff, ORDER ON MOTION FOR LEAVE 12 v. TO SERVE PROCESS BY ALTERNATIVE MEANS 13 LE HOANG MINH, d/b/a WINMART, 14 Defendant. [15] 16 This matter is before the Court on plaintiff’s motion for leave to serve process by 17 alternate means and on referral from the District Court. See Dkt. 10. For the reasons discussed 18 herein, the Court grants the motion. 19 BACKGROUND 20 Plaintiff brings claims against defendant, a resident of Vietnam, for allegedly trafficking 21 in a “circumvention device” that “jailbreaks” plaintiff’s video game consoles, circumventing 22 plaintiff’s copyright protection systems and allowing people to play pirated video games. Dkt. 1, 23 at 2–3. These claims are brought under the Digital Millennium Copyright Act (DMCA), 17 [24] 1 U.S.C. § 1201 et seq. See Dkt. 1, at 2. Specifically, plaintiff brings claims under 17 U.S.C. §§ 2 1201(a)(2), (b)(1) for trafficking in certain devices (Dkt. 1, at 10, 12) and 17 U.S.C. § 512 (f) for 3 abuse of DMCA counternotification. See Dkt. 1, at 14. 4 Plaintiff provides a DMCA counternotification that defendant filed with Amazon.com, 5 Inc., on November 4, 2020. Dkt. 10, at 3. That counternotification includes defendant’s name 6 and address in Vietnam, consent to the jurisdiction of “any United States federal district court in 7 which Amazon.com and its affiliates may be found,” and agreement to accept service from 8 plaintiff. See Dkt. 10, at 3. 9 DISCUSSION 10 Plaintiff argues that service by email is appropriate either under the DMCA or under Fed. 11 R. Civ. P. 4(f)(3). See Dkt. 10, at 3–5. Finding that service by email is appropriate Fed. R. Civ. 12 P. 4 (f)(3), the Court grants the motion and does not reach the alternative argument under the 13 DMCA, as discussed below. 14 Fed. R. Civ. P. 4(f)(3) authorizes service on individuals in a foreign country as follows: 15 Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed . . . may be effected in a place not within 16 any judicial district of the United States: (1) by any internationally agreed means reasonably calculated to give notice, such 17 as those means authorized by the Hague Convention . . . ; or . . . . 18 (3) by other means not prohibited by international agreement as may be directed by the court. [19] 20 Alternative service under Fed. R. Civ. P. 4(f)(3) is “neither a last resort nor extraordinary 21 relief. . . . It is merely one means among several which enable service of process on an 22 international defendant.” Rio Props. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). 23 Alternative service methods approved by courts include email. Id. at 1016 (collecting cases). [24] 1 “The decision whether to allow alternative methods of serving process under Rule 4(f)(3) is 2 committed to the sound discretion of the district court.” Brockmeyer v. May, 383 F.3d 798 , 805 3 (9th Cir. 2004). 4 To authorize service under Rule 4(f)(3), the Court must find that the method of service 5 does not violate any international agreement or due process. Here, there is no international 6 agreement prohibiting email service. See UnitedHealth Grp., Inc. v. United Healthcare, Inc., 7 No. 214CV00224RCJNJK, 2014 WL 12791252 , at *3 (D. Nev. July 21, 2014) (finding that 8 service of process by mail and e-mail on Vietnam defendants was appropriate), objections 9 overruled, No. 2:14-CV-00224-RCJ, 2014 WL 4635882 (D. Nev. Sept. 16, 2014). 10 To comply with due process, a method of service must be “reasonably calculated, under 11 all the circumstances, to apprise interested parties of the pendency of the action and afford them 12 an opportunity to present their objections.” Rio Props., 284 F.3d at 1016 , 1017 (quoting Mullane 13 v. Cent. Hanover Bank & Trust, 339 U.S. 306, 314 (1950)). Here, plaintiff is a Washington 14 corporation alleging that it learned of defendant’s infringing conduct through product listings 15 that defendant offers as a seller on Amazon.com. Plaintiff asserts that the only information it has 16 about defendant is the information that plaintiff received when defendant filed the DMCA 17 counter-notification. The Court notes that plaintiff states it is also in the process of attempting 18 service at the physical address that plaintiff gave. See Dkt. 10, at 7 n.2. 19 The notice of counter notification that plaintiff attaches to the complaint was sent by 20 Amazon.com to plaintiff, with a copy sent to the email address in question. Because the email 21 address in question includes a portion of defendant’s name and because Amazon.com is using 22 the email address as the means of communication with defendant, the Court finds that defendant 23 is likely using the email address in connection with the allegedly infringing activity and as a [24] 1 primary means of communication. Therefore, the Court concludes that service to this email 2 address is reasonably calculated under the circumstances to apprise defendant of the action. 3 Therefore, the Court will grant plaintiff leave to serve defendant via email at the email 4 address identified in plaintiff’s motion. See Dkt. 10. 5 Dated this 5th day of January, 2021. [7] A [8] J. Richard Creatura [9] United States Magistrate Judge