HP Inc. v. WISETA

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 HP INC., et al., Case No. 23-cv-00344-HSG 8 Plaintiffs, ORDER GRANTING PLAINTIFFS’ EX PARTE APPLICATION FOR 9 v. ALTERNATE SERVICE 10 WISETA, et al., Re: Dkt. No. 11 11 Defendants. [12] 13 Pending before the Court is Plaintiffs HP Inc. and Hewlett-Packard Development 14 Company, L.P’s ex parte motion for alternate service. Dkt. No. 11. 15 I. BACKGROUND 16 Plaintiffs initially filed this action on January 23, 2023. Dkt. No. 1 (“Compl.”). Plaintiffs 17 contend that Defendants are online sellers who have been selling off-brand ink and toner made to 18 look like Plaintiffs’ own products on Amazon and other online marketplaces. See id. Plaintiffs 19 believe Defendants “reside and/or operate” in China. See id. at ¶ 9. In their ex parte application, 20 Plaintiffs assert that despite their efforts to locate valid addresses, they have been unable to serve 21 Defendants. See Dkt. No. 11. Plaintiffs therefore seek to serve Defendants through electronic 22 service.1 See id. 23 II. LEGAL STANDARD 24 “Before a federal court may exercise personal jurisdiction over a defendant, the procedural 25 requirement of service of summons must be satisfied.” Omni Capital Int’l v. Rudolf Wolff & Co., [27] 1 Since Plaintiffs filed their application, they were able to successfully serve Defendants EJET, [1] 484 U.S. 97, 104 (1987). Under Federal Rule of Civil Procedure 4(f), foreign entities may be 2 served outside the United States: [3] (1) by any internationally agreed means of service that is reasonably 4 calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial 5 Documents; 6 (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method 7 that is reasonably calculated to give notice, by: 8 i. delivering a copy of the summons and of the complaint to the individual personally; or [9] ii. using any form of mail that the clerk addresses and sends 10 to the individual and that requires a signed receipt; or 11 (3) by other means not prohibited by international agreement, as the court orders. [12] 13 Fed. R. Civ. P. 4(f)(1)–(3). Rule 4 is intended “to provide maximum freedom and flexibility in the 14 procedures for giving all defendants . . . notice of commencement of the action and to eliminate 15 unnecessary technicality in connection with service of process.” See Elec. Specialty Co. v. Rd. & 16 Ranch Supply, Inc., 967 F.2d 309, 314 (9th Cir. 1992) (quotation omitted) (alteration in original). 17 Under Rule 4(f)(3), courts can order service through “a wide variety of alternative methods 18 of service, including publication, ordinary mail, mail to the defendant’s last known address, 19 delivery to the defendant’s attorney, telex, and most recently, email,” provided that there is no 20 international agreement directly to the contrary. See Rio Props., Inc. v. Rio Intern. Interlink, 284 21 F.3d 1007, 1016 (9th Cir. 2002). However, to comport with due process, “the method of service 22 crafted by the district court must be ‘reasonably calculated, under all the circumstances, to apprise 23 interested parties of the pendency of the action and afford them an opportunity to present their 24 objections.’” Id. at 1016–17 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 , 25 314 (1950)). 26 III. DISCUSSION 27 Plaintiffs seek an order from the Court allowing it to serve Defendants ZHAICOLOR, 1 system.2 See Dkt. Nos. 11, 15. According to Plaintiffs, Defendants “obscure their identities and 2 locations . . . by operating behind multiple aliases and providing invalid physical address 3 information on their online store pages . . . .” See Dkt. No. 11 at 1. Plaintiffs investigated every 4 physical address that Defendants provided on their Amazon storefronts, but all were invalid. See [5] id. at 1–4; Chisek Decl. at ¶¶ 2–17, 30–32, 37, 41–44, 68–69, 74–77, 87–89. Some led to private 6 residences, empty buildings, or unrelated businesses. Id. Plaintiffs have therefore been unable to 7 serve Defendants through traditional means. 8 The United States and China are both signatories to the Hague Convention on the Service 9 Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, a multilateral 10 treaty whose purpose is “to simplify, standardize, and generally improve the process of serving 11 documents abroad.” Water Splash, Inc. v. Menon, 581 U.S. 271, 273 (2017); see also Chisek 12 Decl. at ¶ 104, & Ex. 18 (“Hague Convention”). Nevertheless, by its terms, the Hague 13 Convention “shall not apply where the address of the person to be served with the document is not 14 known.” See Hague Convention at 2, Art. 1; see also Facebook, Inc. v. 9 Xiu Network (Shenzhen) 15 Tech. Co., 480 F. Supp. 3d 977 , 980–87 (N.D. Cal. 2020) (discussing application of Convention 16 and Rule 4(f)). 17 Here, even if the Hague Convention would prohibit service through electronic means, 18 Plaintiffs have been unable to identify physical addresses for Defendants after making 19 considerable efforts to do so. Before filing this application, Plaintiffs: [20] 21 • hired a U.S.-based investigator who made test purchases from each Defendant and 22 conducted an online investigation to identify physical addresses for them; 23 • identified the addresses listed on Defendants’ respective Seller’s Pages on Amazon and 24 researched online whether they were connected to any actual business or physical 25 location; [27] 2 The Amazon messaging system can be accessed by visiting the “About Seller” page for the 1 • hired a China-based investigator to conduct online research, visit each of the physical 2 addresses purportedly connected to Defendants, and speak with individuals present at 3 those locations to determine whether they were connected to Defendants. [4] 5 Plaintiffs’ investigation appears reasonable and thorough under the circumstances. But despite 6 these efforts, Plaintiffs were unable to identify valid addresses. See Chisek Decl. at ¶¶ 2–17, 30– 7 32, 37, 41–44, 68–69, 74–77, 87–89. Based on Plaintiffs’ representations, the Court finds that the 8 addresses for Defendants are not known and the Hague Convention thus does not apply. 9 The Court further finds that service by email and through the Amazon messaging system 10 under Rule 4(f)(3) comports with due process. See Rio Properties, 284 F.3d at 1016 (“Even if 11 facially permitted by Rule 4(f)(3), a method of service of process must also comport with 12 constitutional notions of due process.”). As the Supreme Court has cautioned, such service must 13 be “reasonably calculated, under all the circumstances, to apprise interested parties of the 14 pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 15 U.S. at 314. 16 Defendants have active storefronts on Amazon where they sell their products, and they use 17 email and the Amazon messaging system to interact with customers and conduct their online 18 business. See Chisek Decl. at ¶¶ 28–29, 34–35, 39–40, 66–67, 85–86, 90–99. Defendants 19 ZHAICOLOR and Rohon, for example, contacted Plaintiffs’ investigator about his test purchases 20 via email to confirm that the products were successfully delivered. See id. at ¶¶ 27–29, 39–40. 21 Plaintiffs also independently reached out to Defendants through the Amazon messaging system. 22 See id. at ¶¶ 95–99. Although they initially received an error message that the communication to 23 Defendant ZHAICOLOR could not be delivered due to an issue with an attachment, Plaintiffs re24 sent the message and did not receive any additional “undeliverable” or error messages for 25 ZHAICOLOR or any other Defendants. See id. To the contrary, Defendant ZHAICOLOR 26 actually responded to the message to ask Plaintiffs to re-send the attachments. See id. at ¶ 99, & 27 Ex. 15. 1 through the Amazon messaging system is “reasonably calculated” under the circumstances to 2 apprise Defendants of this action. Accord Telebrands Corp. v. VindEx Sols. LLC, No. 21-CV3 00898-BLF, 2022 WL 1062051 , at *4 (N.D. Cal. Apr. 8, 2022); Microsoft Corp. v. Goldah.com 4 || Network Tech. Co., No. 17-CV-02896-LHK, 2017 WL 4536417 , at *5 (N.D. Cal. Oct. 11, 2017) 5 (“[W ]here defendants conduct commercial internet activities, email service is reasonably 6 || calculated to apprise them of the suit and thus comports with due process.”) (collecting cases). 7 IV. CONCLUSION 8 Accordingly, the Court GRANTS the application. Plaintiffs are DIRECTED to serve 9 Defendants via email and through the Amazon messaging system within 7 days of the date of this 10 || order. Plaintiffs shall file a status report by May 12, 2023, confirming that service was effectuated 11 and explaining what responses, if any, they have received from the remaining Defendants. 12 The Court further CONTINUES the May 2, 2023 telephonic case management conference 5 13 to June 13, 2023, at 2:00 p.m. All counsel shall use the following dial-in information to access the 14 || call: Dial-In: 888-808-6929; a 16 Passcode: 6064255 3 17 All attorneys and pro se litigants appearing for a telephonic case management conference are 18 || required to dial in at least 15 minutes before the hearing to check in with the courtroom deputy. 19 For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all 20 || possible, parties shall use landlines. The Court DIRECTS the parties to meet and confer and 21 submit a joint case management statement by June 6, 2023. This terminates Dkt. No. 17. 22 IT IS SO ORDERED. 23 || Dated: April 27, 2023 24 Apupured 8 Mb). HAYWOOD S. GILLIAM, JR. 25 United States District Judge