Amazon.com Inc v. KexleWaterFilters

• Court: District Court, W.D. Washington
• Decided: February 15, 2023
• Docket: 2:22-cv-01120
• Status: Unknown

Opinion

1 2

3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 AMAZON.COM, INC., et al., CASE NO. C22-1120JLR 11 Plaintiffs, ORDER v. 12 KEXLEWATERFILTERS, et al., 13 Defendants. 14

15 I. INTRODUCTION 16 Before the court is Plaintiffs Amazon.com, Inc., Amazon.com Services LLC 17 (together, “Amazon”), General Electric Company, and Haier US Appliance Solutions, 18 Inc.’s (together, “GE,” and collectively, “Plaintiffs”) ex parte motion for alternative 19 service of process. (Mot. (Dkt. # 18).) Plaintiffs seek leave to serve 16 named 20 Defendants1 using the email addresses associated with their Amazon.com selling 21

1 These Defendants are the individuals and entities doing business as the following 22 Amazon selling accounts: KexleWaterFilters, HOM-POWER Store, NO-MIIMS, CLANORY, 1 accounts. (See generally Mot.) None of the Defendants have been served and none have 2 appeared in this action. (See generally Dkt.) The court has considered the motion, all

3 materials submitted in support of the motion, the relevant portions of the record, and the 4 governing law. Being fully advised, the court DENIES Plaintiffs’ ex parte motion for 5 alternative service of process without prejudice. 6 II. BACKGROUND 7 Amazon and GE bring claims against 16 named Defendants for allegedly selling 8 counterfeit GE-branded refrigerator water filters on Amazon.com that infringe on GE’s

9 registered trademarks (the “GE Trademarks”). (Compl. ¶ 3 (describing the GE 10 Trademarks); id. ¶¶ 6-7, 53-87 (describing the allegedly infringing products and the 11 named Defendants’ alleged roles in advertising, marketing, offering, and selling those 12 products).) Amazon asserts that once it verified that the named Defendants were selling 13 counterfeit GE-branded products, it shut down those Defendants’ Amazon selling

14 accounts (the “Selling Accounts”) and issued full refunds to customers who purchased 15 the counterfeit products. (Id. ¶ 93.) 16 Four of the named Defendants provided business addresses in the United States 17 when they created their Selling Accounts. (Id. ¶¶ 13, 15, 19, 28.) The remaining named 18 Defendants provided business addresses in China. (Id. ¶¶ 14, 16-18, 20-27.) Each named

19 Defendant also provided an email address and banking information for its Selling 20

Tomorrow-Citystor, HOMASZ, Romarotic, Dropsales, Tamei-US, DanielJames, icepy, 21 WanHaoFilter, HNAMZ-US, DOOBOO-US, Purtech, and Barcelona-US. (Compl. (Dkt. # 1) ¶¶ 13-28.) Plaintiffs also allege claims against ten unknown Doe Defendants whom they allege 22 work “in active concert with each other and the named Defendants.” (Id. ¶ 29.) 1 Account. (Id. ¶ 47.) Amazon alleges that these Defendants “took active steps to mislead 2 Amazon and conceal their true locations and identities by providing false information.”

3 (Id.) Plaintiffs have “attempted to uncover these Defendants’ identities and locations by 4 analyzing Amazon’s records about the Selling Accounts, [and] enlisting private 5 investigators who used both public records and investigative tools to research the contact 6 information Defendants provided to Amazon when registering the Selling Accounts,” but 7 despite their efforts, Plaintiffs have been “unable to locate the true identities of the 8 Defendants or their current whereabouts.” (2/7/23 Lewis Decl. (Dkt. # 19) ¶ 3.)

9 Plaintiffs filed their complaint for damages and equitable relief on August 11, 10 2022. (Compl. at 1.) Plaintiffs then attempted to serve six of the Defendants2 at the most 11 recent U.S. business addresses they had provided to Amazon, but in each case, Plaintiffs’ 12 process server was unable to locate an appropriate individual on whom to serve the 13 complaint, and Plaintiffs determined that the addresses these Defendants had provided

14 were false, not associated with the Defendants, or invalid. (2/7/23 Lewis Decl. ¶ 3.) For 15 the remaining Defendants, Plaintiffs’ investigation revealed that many of the U.S. and 16 Chinese addresses provided by the Defendants “do not correspond with any location or 17 are not affiliated with Defendants.” (Id. ¶ 4.) Plaintiffs also had investigators research 18 the most recently provided business addresses in China for ten of the Defendants. (Id.

19 ¶ 5.) The investigators found that for seven of these Defendants the addresses were 20 21

2 Barcelona-US, CLANORY, DooBoo-US, HNAMZ-US, KexleWaterFilters, and 22 Tomorrow-CityStor. (Lewis Decl. ¶ 3.) 1 inaccurate or not associated with Defendants’ businesses, and for three of the Defendants, 2 the investigators were unable to confirm whether the addresses were invalid. (Id.)

3 Plaintiffs then moved ex parte for expedited discovery in an effort to determine 4 Defendants’ true identities. (Disc. Mot. (Dkt. # 11).) The court granted the motion on 5 October 26, 2022. (10/26/22 Order (Dkt. # 14).) Specifically, the court authorized 6 Plaintiffs to “serve Rule 45 subpoenas to obtain information regarding Defendants’ true 7 identities, locations, and the scope of the alleged counterfeiting scheme” from certain 8 third-party banks, email address providers, and storage facilities, and inbound shipping

9 addresses. (Id.; see Disc. Mot. at 2-3.) On November 9, 2022, the court granted 10 Plaintiffs’ ex parte motion for an extension of time to serve the named Defendants to 11 allow Plaintiffs to complete the expedited discovery. (11/9/22 Order (Dkt. # 17).) The 12 results of Plaintiffs’ subpoenas have been disappointing: Plaintiffs did not receive a 13 response from CitiBank; First Century Bank responded that it does not create or maintain

14 the requested records; Deutsche Bank was unable to locate responsive documents; Wells 15 Fargo was unable to provide the requested information because it was unable to locate the 16 businesses or account numbers associated with the Selling Accounts; UPLUS’s facility 17 appeared to be permanently closed when service was attempted; Microsoft Corporation is 18 still collecting information; and Payoneer, Inc. has produced information indicating that

19 four Defendants—Dropsales, Tamei-US, icepy, and Purtech—are likely located in China. 20 (2/7/23 Lewis Decl. ¶ 6.) 21 Plaintiffs now ask the court to authorize them to serve the named Defendants 22 using the email addresses associated with the Defendants’ Selling Accounts. (Mot.; see 1 2/7/23 Haskel Decl. (Dkt. # 20) ¶ 5 (listing the email addresses Defendants provided 2 when they registered their Selling Accounts).) Plaintiffs do not indicate whether they

3 have attempted to contact any of the Defendants using the email addresses associated 4 with their Selling Accounts, nor do they represent that any of the Defendants have notice 5 that this lawsuit is pending. (See generally 2/7/23 Lewis Decl.; 2/7/23 Haskel Decl.) 6 III. ANALYSIS 7 Federal Rule of Civil Procedure 4(h) governs service of process on foreign 8 businesses. Fed. R. Civ. P. 4(h). Rule 4(h)(2) authorizes service of process on a foreign

9 corporation “at a place not within any judicial district of the United States, in any manner 10 prescribed by Rule 4(f) for serving an individual, except personal delivery under 11 (f)(2)(C)(i).” Fed. R. Civ. P. 4(h)(2). Rules 4(f)(1) and 4(f)(2) provide specific methods 12 of serving process on individuals in foreign countries. See Fed. R. Civ. P. 4(f)(1)-(2). 13 Rule 4(f)(3) allows international service by a method not listed in Rule 4(f)(1) or (2) if

14 the method is “not prohibited by international agreement, as the court orders.” Fed. R. 15 Civ. P. 4(f)(3); see also Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014-15 16 (9th Cir. 2002). As long as the method of service is “court-directed and not prohibited by 17 an international agreement, service of process ordered under Rule 4(f)(3) may be 18 accomplished in contravention of the laws of the foreign country.” Rio Props., 284 F.3d

19 at 1014. “Service under Rule 4(f)(3) is neither a ‘last resort’ nor ‘extraordinary relief’”; 20 rather, “[i]t is merely one means among several which enables service of process on an 21 international defendant.” Id. at 1015. 22 1 “Even if facially permitted by Rule 4(f)(3),” however, “a method of service of 2 process must also comport with constitutional notions of due process.” Id. at 1016.

3 Thus, the “method of service crafted by the district court must be ‘reasonably calculated, 4 under all the circumstances, to apprise interested parties of the pendency of the action and 5 afford them an opportunity to present their objections.’” Id. at 1016-17 (quoting Mullane 6 v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Thus, the court proceeds 7 to analyze (1) whether service of process by email is permitted under Rule 4(f)(3) and 8 (2) whether that method comports with due process.

9 A. Rule 4(f)(3) 10 First, the court must determine whether service of process on defendants in China 11 by email is “prohibited by international agreement.” Fed. R. Civ. P 4(f)(3). The court 12 concludes that service of process by email is not prohibited by international agreement 13 and is therefore permitted by Rule 4(f)(3).

14 China is a signatory to the Hague Convention. See Contracting Parties, Hague 15 Conference on Private International Law, https://www.hcch.net/en/instruments/ 16 conventions/status-table/?cid=17 (last visited February 15, 2023). At the outset, it is 17 questionable whether the Hague Convention applies to the facts of this case. The Hague 18 Convention expressly does not apply where the address of the foreign defendant is

19 unknown. See Hague Convention, art. 1 (“This Convention shall not apply where the 20 address of the person to be served with the document is not known.”); see also 21 Amazon.com v. Tian, No. C21-0159TL, 2022 WL 486267, at *3 (W.D. Wash. Feb. 17, 22 2022) (citing cases that authorized service by email where the defendants’ physical 1 addresses were unknown). Thus, here, where Plaintiffs have been unable to identify valid 2 physical business addresses for the named Defendants, the Hague Convention arguably

3 does not apply in the first instance and therefore does not prohibit service of process by 4 email. 5 Even if the Hague Convention applies, the court concludes that service by email is 6 a permissible method of service under Rule 4(f)(3). Service through a country’s Central 7 Authority is the principal means of service under the Hague Convention. See Rubies 8 Costume Co. v. Yiwu Hua Hao Toys Co., Ltd., No. C18-1530RAJ, 2019 WL 6310564, at

9 *2 (W.D. Wash. Nov. 25, 2019). Article 10 of the Hague Convention, however, 10 “preserves the ability of parties to effect service through means other than a recipient- 11 nation’s Central Authority as long as the recipient-nation has not objected to the specific 12 alternative means of service used.” Id. (citing Hague Convention, art. 10). China has 13 expressly rejected service through the means enumerated in Article 10, including service

14 through postal channels and through its judicial officers. Id.; see 15 Declaration/Reservation/Notification, https://www.hcch.net/en/instruments/conventions/ 16 status-table/notifications/?csid=393&disp=resdn (last visited February 15, 2023) (stating 17 the People’s Republic of China “oppose[s] the service of documents in the territory of the 18 People’s Republic of China by the methods provided by Article 10 of the Convention”).

19 Article 10, however, does not mention service by email or other electronic 20 communications, and multiple courts in the Ninth Circuit have concluded that China’s 21 objection to Article 10 does not prohibit alternative service of process by electronic 22 communications to defendants located in China. See Rubies Costume Co., 2019 WL 1 6310564, at *3 (citing cases authorizing service on defendants located in China via email 2 and/or online messaging systems); id. at *4 (authorizing service of process on defendants

3 located in China via email and Amazon.com seller account storefronts). Consistent with 4 these cases, the court concludes that the Hague Convention and Rule 4(f)(3) do not 5 prohibit service of process on Defendants by email. 6 B. Due Process 7 Second, the court considers whether service of process on Defendants using the 8 email addresses associated with their Selling Accounts comports with constitutional due

9 process—that is, whether this method of service is “reasonably calculated, under all the 10 circumstances, to apprise interested parties of the pendency of the action and afford them 11 an opportunity to present their objections.” Mullane, 339 U.S. at 314. 12 Plaintiffs rely on several cases for their argument that service of process on 13 Defendants by email is appropriate here. (Mot. at 6; id. at 6 n.2.) In most of these cases,

14 however, there were indicia that the defendants would in fact receive notice of the lawsuit 15 if the plaintiffs served them by email. In Rio Properties, 284 F.3d at 1017, for example, 16 the plaintiff emailed the summons and complaint to the defendant’s international courier, 17 which provided the documents to the defendants’ attorney, who in turn refused to receive 18 service of process on behalf of his client. In Keck v. Alibaba.com, Inc., No.

19 17-CV-05672-BLF, 2018 WL 3632160, at *2 (N.D. Cal. July 31, 2018), the plaintiff’s 20 private investigator sent test messages to the defendants’ Alibaba.com or AliExpress.com 21 storefronts through the AliExpress.com message system. The investigator did not receive 22 any error messages; none of the messages were returned as undeliverable; and many of 1 the defendants responded to the messages. Id. The same is true in Bright Solutions for 2 Dyslexia, Inc. v. Lee, No. 15-CV-01618-JSC, 2017 WL 10398818, at *3 (N.D. Cal. Dec.

3 20, 2017), report and recommendation adopted, No. 15-CV-01618-CW, 2018 WL 4 4927702 (N.D. Cal. Mar. 26, 2018), in which the plaintiff’s investigator sent messages to 5 the associated email addresses and received no errors from at least two of the addresses. 6 See also Toyo Tire & Rubber Co. v. CIA Wheel Grp., No. 15-0246-DOC (DFMX), 2016 7 WL 1251008, at *3 (C.D. Cal. Mar. 25, 2016) (granting alternative service where 8 plaintiff had successfully sent messages to the defendants’ email addresses).

9 The court agrees with the approach set forth in these cases, and concludes that the 10 due process requirement for alternative service by email is satisfied when the plaintiff 11 demonstrates that the email addresses at issue are valid and are successfully receiving 12 messages. For example, in Amazon.com, Inc. v. Tian, No. C21-00159TL, 2022 WL 13 486267, at *3 (W.D. Wash. Feb. 17, 2022), the court denied alternative service by email

14 where there was no evidence that the defendants had actual notice of the lawsuit and 15 where the plaintiffs did not point to “recent communications with the defendants that 16 demonstrated the reliability of the proposed form of alternative service.” See also 17 Padded Spaces LLC v. Weiss, No. C21-0751JLR, 2022 WL 1423701, at *2 (W.D. Wash. 18 May 5, 2022) (granting alternative service by email where counsel had successfully sent

19 messages about the lawsuit and a copy of the complaint to the email addresses associated 20 with the defendant’s Selling Account and through its Amazon.com storefront). Here, 21 Plaintiffs have not demonstrated that the email addresses associated with Defendants’ 22 Selling Accounts are still valid email addresses and that service of process via email is 1 likely to provide Defendants with notice of this lawsuit. (See generally 2/7/23 Lewis 2 Decl.; 2/7/23 Haskel Decl.) Therefore, the court DENIES Plaintiffs’ motion for

3 alternative service by email without prejudice. Plaintiffs may renew their motion with 4 evidence of recent communications to Defendants that demonstrates that service by email 5 is a reliable method to provide Defendants with notice of the pendency of this action. 6 IV. CONCLUSION 7 For the foregoing reasons, the court DENIES Plaintiffs’ ex parte motion for 8 alternative service of process (Dkt. # 18) without prejudice to renewing their motion with

9 evidence that Defendants’ Selling Account email addresses remain a reliable means of 10 communicating with Defendants. 11 Dated this 15th day of February, 2023. 12 A 13 14 JAMES L. ROBART United States District Judge 15 16 17 18 19 20 21 22