Bungie Inc v. Bansal

1 HONORABLE THOMAS S. ZILLY [6] 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE [9] BUNGIE, INC., a Delaware corporation, Case No. 2:21-cv-1111-TSZ [10] Plaintiff, 11 PLAINTIFF BUNGIE, INC.’S EX PARTE v. MOTION FOR ALTERNATIVE SERVICE [12] KUNAL BANSAL, an individual, d/b/a 13 LAVICHEATS.COM; and DOES 1-30, inclusive, [14] Defendants. [15] 16 Pursuant to Federal Rule of Civil Procedure 4(f)(3), Plaintiff Bungie, Inc. seeks leave to 17 effectuate service of process upon Defendant Kunal Bansal by (1) email and (2) posting to the 18 forum on the website operated by Defendant (lavicheats.com). Bungie’s request complies with 19 Rule 4(f)(3) because service by these methods does not contravene any international agreement 20 governing service of process and is reasonably calculated to give notice to Bansal. 21 FACTUAL BACKGROUND 22 A. Bungie and Defendants’ Distribution and Sale of “Cheats” and “Hacks” 23 Bungie is the owner of the online, multiplayer first-person shooter video game franchise 24 “Destiny”, including the most recent chapter in the franchise, “Destiny 2.” (Dkt. 1 at ¶ 1.) 25 Defendant Kunal Bansal—via the website he operates, Lavicheats.com (the “Lavicheats 26 Website”)—markets, distributes, sells, and offers support for software “cheats” or “hacks” for 27 Destiny 2 that give players using them an unfair advantage. (Dkt. 1 at ¶¶ 2, 5.) 1 Based on Bungie’s investigation, Bansal – sometimes using the alias “Lavi” or the user 2 name “kunalbansal” – conducts his business marketing, selling, distributing, and supporting the 3 cheating software for Destiny 2 entirely online via the Lavicheats Website and other online 4 platforms where the Lavicheats are promoted and supported. (Declaration of Allison Nixon in 5 Support of Plaintiff’s Ex Parte Motion for Alternative Service ¶¶ 3-6.) Customers select and 6 purchase the cheating software via the Lavicheats Website online store, pay for the cheating 7 software via online payment processors, and are directed to download the cheating software once 8 the license key is validated. (Id. ¶ 4; Dkt. 1 at ¶¶ 44-46, 54-55.) The Lavicheats Website does not 9 include any physical address for the business or Bansal nor does it identify any business entity as 10 the owner or operator of the website and its business. Lavicheats also does not appear to be a 11 registered business entity based on Bungie’s investigation to date. (Nixon Decl. ¶ 7.) Similarly, 12 the public “Whois” data for the Lavicheats Website domain name reflects that the domain is 13 registered using a “privacy” service that hides the address of the registrant. (Id. ¶ 8.) 14 On August 18, 2021, Bungie filed its Complaint against Bansal (and Doe Defendants) 15 alleging claims for trafficking in circumvention devices under the Digital Millennium Copyright 16 Act, contributory and vicarious copyright infringement, trademark infringement and other 17 violations of the Lanham Act, as well as claims under Washington law. (See generally Dkt. 1.) 18 B. Bungie’s Efforts to Discover a Physical Address for Bansal Have Been Unsuccessful 19 As part of its investigation of Defendants’ cheating software for Destiny 2, Bungie 20 identified Bansal (a/k/a “Lavi”) as the individual primarily responsible for the operation of the 21 Lavicheats Website through which the Lavicheats for Destiny 2 are marketed and sold. (Nixon 22 Decl. ¶¶ 3-5.) Bungie has not been able to locate a physical address for Bansal, only that he is 23 believed to live in or near Bathinda, India. (Id. ¶¶ 5, 7.) Bathinda, a district in Punjab province, 24 has a population of more than 1.3 million people, and the population of Bathinda city proper is 25 more than 280,000 people.1 [26] 1 According to the most recent Census of India information available, the population of the [27] 1 C. Bungie’s Identification of Alternative Means to Notify Bansal 2 While its attempts to locate Bansal’s physical address have been unsuccessful, Bungie 3 has found an email address associated with Bansal and the Lavicheats Website. (Nixon 4 Decl. ¶¶ 7-9.) The email address – kunalbansal922@gmail.com – was identified by reviewing 5 information provided by the domain name registrant for the Lavicheats Website as the point of 6 contact for technical issues related to the domain. (Id. ¶ 9.) Subsequent investigation identified 7 an active telephone number tied to Bansal, which in turn was associated with that email address. 8 (Id. ¶ 10.) Bungie has also determined that the email address is active, as an email sent to the 9 address did not “bounce” back nor was it otherwise flagged as undeliverable. (Id. ¶¶ 11-12.) 10 Additionally, the Lavicheats Websites hosts several public discussion forums, including 11 one—the “MediaSection” forum—to which it appears visitors may post. (Declaration of Stacia 12 N.Lay in Support of Plaintiff’s Ex Parte Motion for Alternative Service ¶¶ 4-5, Ex. 2.) Bansal, 13 using the alias “Lavi”, is identified as an administrator on the Lavicheats Website and is 14 currently active and a frequent poster on the website. (Lay Decl. ¶ 3, Ex. 1.) 15 ARGUMENT 16 Under FED. R. CIV. P. 4(f)(3), courts have discretion to allow service on a foreign party 17 by alternative means if the proposed method of service is not prohibited by an international 18 agreement and satisfies constitutional due process standards. Rio Properties, Inc. v. Rio Int’l 19 Interlink, 284 F.3d 1007, 1015-16 (9th Cir. 2002). As detailed below, serving Bansal by email 20 and posting to the Lavicheats Website forum satisfies both elements. Additionally, “[p]arties are 21 not required to attempt service by other methods before petitioning the court for alternative 22 service of process[.]” Rubie’s Costume Co v. Yiwu Hua Hao Toys Co., No. 2:18-cv-01530-RAJ, [23] 2019 U.S. Dist. LEXIS 204380 , *4 (W.D. Wash. Nov. 25, 2019); see also Rio Properties, 284 [24] Bathinda district was 1,388,525 people and that of Bathinda city was 285,788. See 25 https://www.census2011.co.in/census/district/599-bathinda.html (last visited Aug. 12, 2021); https://www.census2011.co.in/census/city/16-bathinda.html (same). Such census information is 26 subject to judicial notice. See Reed v. Gen. Mills, Inc., No. C19-0005-JCC, 2019 U.S. Dist. LEXIS 99388 , *9 (W.D. Wash. June 13, 2019). [27] 1 F.3d at 1015 (rejecting argument that Rule 4(f) establishes a hierarchy of preferred methods of 2 service and noting that Rule 4(f)(3) “includes no qualifiers or limitations which indicate its 3 availability only after attempting service of process by other means”). 4 A. Serving by Email and Forum Post Does Not Contravene International Agreements 5 There is no international agreement prohibiting service by the means requested. The 6 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (“Hague 7 Convention”) does not apply when a foreign defendant’s physical address is unknown, and as a 8 result, does not prohibit service of such a defendant by email or website posting. See Convention 9 of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or 10 Commercial Matters, Art. I, available at https://www.hcch.net/en/instruments/conventions/full11 text/?cid=17 (last visited Aug. 12, 2021) (“This Convention shall not apply where the address of 12 the person to be served with the document is not known.”). 13 Even if the Hague Convention were relevant here – which it is not, because Bungie has 14 been unable to locate Bansal’s physical address – the Court can still authorize service by email 15 and website posting. See Richmond Techs., Inc. v. Aumtech Bus. Solutions, No. 11-CV-0246016 LHK, 2011 U.S. Dist. LEXIS 71269 , *40 (N.D. Cal. July 1, 2011) (“[N]umerous courts have 17 authorized alternative service under Rule 4(f)(3) even where the Hague Convention applies. This 18 is true even in cases involving countries that, like India, have objected to the alternative forms of 19 service permitted under Article 10 of the Hague Convention.”); see also Gurung v. Malhotra, [20] 279 F.R.D. 215, 220 (S.D.N.Y. 2011) (approving of email service despite India’s objection to 21 Article 10 of the Hague Convention relating to service by “postal channels” because “India did 22 not expressly object to electronic mail as a means of service”). 23 B. Service by Email and Forum Post Meets the Constitutional Due Process Standard 24 Service comports with due process if it is “reasonably calculated, under all the 25 circumstances, to apprise interested parties of the pendency of the action and afford them an 26 opportunity to present their objections.” Rio Properties, 284 F.3d at 1016-17 (internal quotation 27 marks omitted). The Ninth Circuit has interpreted Rule 4(f)(3) to allow service on foreign 1 defendants by email consistent with due process where they cannot be reached by other means or 2 have no known physical address. Id. at 1017-18 . Similarly, courts have authorized service by 3 social media and online posting. See, e.g., Assef v. Doe, No. 15-cv-01960-MEJ, 2016 U.S. Dist. 4 LEXIS 41597 , *11 (N.D. Cal. Mar. 28, 2016) (approving of service by email and blog post). 5 In Rio Properties, for example, the court found that email was the service method “most 6 likely to reach” a defendant who operated a website from Costa Rica with no discoverable street 7 address in the United States or Costa Rica, and who only provided an email address for contact 8 information. 284 F.3d at 1017-18 . The defendant “had neither an office nor a door; it had only a 9 computer terminal. If any method of communication is reasonably calculated to provide 10 [defendant] with notice, surely it is email – the method of communication which [defendant] 11 utilizes and prefers.” Id. at 1018 . Similarly, the court allowed email service on defendants 12 located in China “given [plaintiff’s] showing that Defendants’ address is unknown but active 13 email addresses are available and that email reasonably is calculated to provide Defendants 14 notice of the lawsuit and comport with due process.” Will Co. v. Lee, No. C20-5802 BHS, 2021 15 U.S. Dist. LEXIS 15621 , *3-4 (W.D. Wash. Jan. 27, 2021) (noting that plaintiff sent messages to 16 the email addresses and, while no responses were received, the emails “did not bounce back”). 17 Other decisions have found that email service is permissible and does not raise due 18 process concerns where, as here, the plaintiff “has made a reasonable effort to locate a physical 19 address for service” but has been unsuccessful. See, e.g., Word Ape, LLC v. Pawico, No. 2:20-cv20 01768-DWC, 2021 U.S. Dist. LEXIS 37825 , *8-9 (W.D. Wash. Jan. 4, 2021) (noting that the 21 plaintiff had made such a reasonable effort, including attempting to serve the address the 22 corporate defendant listed on its website and using a national business registry to determine if 23 defendant was registered in any state); see also Amazon.com Inc. v. Sirowl Tech., No. 2:20-cv24 01217-RSL-JRC, 2020 U.S. Dist. LEXIS 228235 , *7-8 (W.D. Wash. Dec. 4, 2020) (finding 25 email service permissible as plaintiffs “demonstrated an inability to obtain a valid physical 26 address for defendants and that defendants conduct business through the internet,” such that 27 email service would provide sufficient notice). 1 Courts have similarly approved of service by social media and website posts where, as 2 here, such service appeared to be the “only available means of contacting” the defendants and 3 such methods were “reasonably calculated to give notice under the circumstances because it 4 appears Defendants may have actively concealed their identities.” Assef, 2016 U.S. Dist. LEXIS 5 41597 at *11 (approving service by email and posting to the blog at issue in the case); see also 6 Word Ape, 2021 U.S. Dist. LEXIS 37825 at *8-9 (approving of service by email and message via 7 defendant’s Facebook store page); FTC v. PCCare247 Inc., No. 12 Civ. 7189 (PAE), 2013 U.S. 8 Dist. LEXIS 31969, *6-19 (S.D.N.Y. Mar. 7, 2013) (approving service by email and Facebook of 9 post-complaint documents on defendants in India under FED. R. CIV. P. 4(f)(3)). 10 Here, Bungie has searched publicly available information and used other investigative 11 tools but has been unable to locate a physical address for Bansal where service can be performed. 12 (Nixon Decl. ¶¶ 7-8.) The only contact information for service it has been able to locate is the 13 email address which Bansal uses in connection with the Lavicheats Website, and Bungie has 14 verified that an email to the address does not “bounce” back and is not otherwise returned as 15 undeliverable. (Id. ¶¶ 9-12.) Similarly, a forum post to the Lavicheats Website—for which 16 Bansal is the administrator—is reasonably calculated to provide notice to him, particularly when 17 combined with email service. Under these circumstances, service by electronic means appears to 18 be the only means of providing Bansal with notice of this lawsuit. See Rio Properties, 284 F.3d 19 at 1018 (noting that, “when faced with an international ebusiness scofflaw, . . . email may be the 20 only means of effecting service of process”). For clarity, either method of service (email or 21 forum post) alone is permissible and comports with due process. Bungie seeks leave to serve by 22 both methods only to ensure that all reasonable steps have been made to provide effective notice. 23 CONCLUSION 24 For the foregoing reasons, Bungie respectfully requests that the Court authorize Bungie 25 to serve Bansal with the Summons and Complaint by (a) sending copies to the email address 26 identified herein, and (b) posting a link to the Summons and Complaint in the “MediaSection” 27 public discussion forum on the Lavicheats Website. 1 Dated this 17th day of September, 2021. Respectfully submitted, 2 FOCAL PLLC 3 By: s/ Stacia N. Lay s/ Venkat Balasubramani 4 Stacia N. Lay, WSBA #30594 Venkat Balasubramani, WSBA #28269 5 900 1st Avenue S., Suite 201 Seattle, Washington 98134 6 Tel: (206) 529-4827 Fax: (206) 260-3966 7 Email: stacia@focallaw.com Email: venkat@focallaw.com [8] Attorneys for Plaintiff Bungie, Inc. [27] 1 HONORABLE THOMAS S. ZILLY [6] 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE [9] BUNGIE, INC., a Delaware corporation, Case No. 2:21-cv-1111-TSZ [10] Plaintiff, 11 ORDER GRANTING PLAINTIFF v. BUNGIE, INC.’S EX PARTE MOTION 12 FOR ALTERNATIVE SERVICE KUNAL BANSAL, an individual, d/b/a 13 LAVICHEATS.COM; and DOES 1-30, inclusive, [14] Defendants. [15] 16 THIS MATTER came before the Court on Plaintiff’s Ex Parte Motion for Alternative 17 Service (“Motion”), docket no. 7. The Court, having considered Plaintiff’s Motion and 18 supporting Declarations and being fully apprised on the matter, hereby ORDERS as follows: 19 1. Plaintiff’s Motion is GRANTED; 20 2. Pursuant to FED. R. CIV. P. 4(f)(3), Plaintiff is authorized to serve Defendant 21 Kunal Bansal with the Summons and Complaint by (a) sending copies to the email address 22 kunalbansal922@gmail.com, and (b) posting a link to the Summons and Complaint in the 23 “MediaSection” public discussion forum on the Lavicheats website, lavicheats.com. 24 SO ORDERED this 22nd day of September, 2021. 25 A [26] Thomas S. Zilly 27 United States District Judge