Viral DRM LLC v. Jardin

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION [6] 7 VIRAL DRM LLC, Case No. 24-cv-06854-BLF 8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PLAINTIFF’S MOTION FOR ALTERNATIVE 10 AURELIEN JARDIN, et al., SERVICE 11 Defendants. [Re: ECF 10] [12] Before the Court is Plaintiff Viral DRM, LLC’s (“Plaintiff”) Motion for Alternative Service. [13] 14 ECF 10. For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART 15 Plaintiff’s Motion for Alternative Service. [16] I. BACKGROUND [17] 18 Plaintiff alleges Defendants Aurelien Jardin and Societe Editrice du Monde (collectively, 19 “Defendants”) operate the YouTube Channel LE HUFFPOST. ECF 1 at ¶ 25. Defendants are alleged 20 to have “copied and downloaded Viral DRM’s copyrighted Works from YouTube.” Id. at ¶ 28. [21] According to Plaintiff, Defendants did so “to advertise, market and promote their YouTube channel, [22] grow their YouTube channel subscriber base, earn money from advertising to their YouTube [23] subscribers, and engage in other money-making business activities using Viral DRM’s copyrighted [24] media content.” Id. at ¶ 30. Viral DRM notified YouTube and Defendants of the allegedly infringing [25] 26 actions by Digital Millennium Copyright Act (“DMCA”) notices. Id. at ¶ 46. 27 On November 4, 2024, Plaintiff filed the Motion for Alternative Service. ECF 10. from the Court to serve process on Defendants by email and by website posting pursuant to Federal [1] 2 Rule of Civil Procedure 4(f)(3). ECF 10 at 1. Plaintiff also seeks leave to serve via WhatsApp 3 messages as an additional backup. Id. at 8. [4] II. LEGAL STANDARD [5] Under Federal Rule of Civil Procedure 4(f)(3), “[u]nless federal law provides otherwise, an [6] 7 individual . . . may be served at a place not within any judicial district of the United States . . . by 8 other means not prohibited by international agreement, as the court orders.” “As [is] obvious from 9 its plain language, service under Rule 4(f)(3) must be (1) directed by the court; and (2) not prohibited [10] by international agreement. No other limitations are evident from the text.” Rio Properties, Inc. v. [11] Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). Indeed, so long as service is court-directed [12] and not prohibited by an international agreement, “service of process under Rule 4(f)(3) may be [13] 14 accomplished in contravention of the laws of the foreign country.” Id. 15 Even if facially permitted under Rule 4(f)(3), substitute service “must also comport with 16 constitutional norms of due process.” Id. at 1016 . “To meet this requirement, the method of service [17] crafted by the district court must be ‘reasonably calculated, under all the circumstances, to apprise [18] interested parties of the pendency of the action and afford them an opportunity to present their [19] objections.’” Id. at 1016-17 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 , [20] 314 (1950)). [22] III. DISCUSSION [23] A. Authorization Under Rule 4(f)(3) [24] The Court finds that the circumstances warrant alternative service. The party [25] 26 requesting alternate service must “demonstrate that the facts and circumstances of the present case 27 necessitate[ ] the district court's intervention.” Rio Props., Inc., 284 F.3d at 1016 . Here, Defendants Court finds these circumstances make service under Rule 4(f)(3) appropriate. See Rio Props., 284 [1] 2 F.3d at 1016 (holding district courts have discretion in “determining when the particularities and 3 necessities of a given case require alternate service of process under Rule 4(f)(3)”). 4 Plaintiff seeks to effect service by email, by web posting and by WhatsApp. Those [5] alternative means are not generally prohibited by international agreement. The Hague Service [6] Convention governs because the United States and France are both parties to this multilateral treaty. [7] See ECF 10 at 2; see also Hague Service Convention Status Table, [8] https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Nov. 21, 2024). [9] 10 The Hague Convention requires each signatory state to establish a central authority to receive 11 requests for service of documents, and Article 10 permits service through other means if the 12 destination state does not object. Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1508 (2017). France [13] does not expressly objects to Article 10. See Hague Conference Authority: France - Central [14] Authority & Practical Information, https://www.hcch.net/en/states/authorities/details3/?aid=256 [15] (last visited Nov. 21, 2024). Accordingly, Plaintiff’s service via email, web posting and WhatsApp [16] is permitted. See Water Splash, 137 S. Ct. at 1508 . [17] 18 B. Compliance with Due Process 19 Even if facially permitted under Rule 4(f)(3), substituted service “must comport with 20 constitutional norms of due process.” Rio Properties, Inc., 284 F.3d at 1014 . Due process does not [21] require actual notice. Jones v. Flowers, 547 U.S. 220, 226 (2006). Instead, the method [22] of service must be “reasonably calculated, under all circumstances, to apprise interested parties of [23] the pendency of the action and afford them an opportunity to present their objection.” Mullane v. [24] 25 Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). 26 Plaintiff's service via email and web posting comports with due process. Here, Plaintiff has 27 demonstrated that the email address listed for Defendant Aurelien Jardin– adequate notice of this action and an opportunity to be heard. See Rio Properties, 284 F.3d at 1016 - [1] 2 17 (finding service via email was “method most likely to reach” defendant and concluding district 3 court did not abuse discretion in authorizing service via email). Plaintiff states that Defendants are 4 required to maintain accurate email addresses to “communicate with Google, receive notice of [5] DMCA takedowns, submit counternotices, receive payment advices, and communicate with [6] YouTube concerning their YouTube channel.” ECF 10 at 4. Plaintiff has presented evidence that [7] Defendants have recently used the email address to submit counter notifications to YouTube with [8] respect to the allegedly infringing actions. See ECF 1-3 at 6. [9] 10 Plaintiff also seeks to serve Defendants by posting copies of the complaint and other legal 11 documents related to this case on Plaintiff’s website located at www.sriplaw.com/notice. ECF 10 at 12 6. Plaintiff’s attorney, Mr. Matthew Rollin, declared under the penalty of perjury that Plaintiff would [13] post all court papers on its website and email its website address to Defendants so that “Defendants [14] can access all electronic filings.” ECF 10-1, Rollin Decl., at ¶ 7. The Court finds that Plaintiff’s [15] proposed method of web posting is “reasonably calculated under all the circumstances, to apprise [16] interested parties of the pendency of the action and afford them an opportunity to present their [17] 18 objections.” Nat’l Ass’n for Stock Car Auto Racing, Inc. v. Does, 584 F. Supp. 2d 824 , 826 19 (W.D.N.C. 2008) (internal citation omitted). Thus, Plaintiff has presented evidence demonstrating 20 service by email and by web posting is likely to reach Defendants and comply with due process. See [21] Rio Properties, 284 F.3d at 1016-17 . [22] The Court finds, however, Plaintiff’s proposed service via WhatsApp message does not [23] comport with due process. In the Motion for Alternative Service, Plaintiff explains that “Defendant [24] 25 might have a WhatsApp account connected to the phone number provided by Defendant to Plaintiff 26 in the counternotices.” ECF 10 at 8 (emphasis added). Plaintiff has not presented any evidence 27 demonstrating that Defendants have a WhatsApp account, or Defendants could be reached via 1 speculation is not enough to prove Defendants can be “likely” reached via this means. See Rio 2 || Properties, 284 F.3d at 1016-17 . Because Plaintiff has not made an adequate showing service by 3 || WhatsApp comports with due process, the Court DENIES Plaintiff's request to include WhatsApp 4 as an additional backup to email service WITHOUT PREJUDICE. [5] 6 IV. ORDER 7 For the foregoing reasons, IT IS HEREBY ORDERED that: 8 Plaintiff's Motion for Alternative Service is GRANTED to the extent it seeks to serve 9 Defendants by email and by web posting, and DENIED WITHOUT PREJUDICE to the extent it [10] seeks to include WhatsApp as a backup means of service. Plaintiff may serve the Complaint and [11] Summons via email at ajardin@ vmmagazines.com and publication on plaintiff's counsel’s website [12] B at http://www.sriplaw.com/notice. Plaintiff shall file proof of service within 10 days of email 14 || Service. Service will be deemed effective as of the date of filing of the proof of service. [15] IT IS SO ORDERED. = 17 [18] Dated: November 25, 2024 20 TH LABSON FREEMAN United States District Judge