Amazon.com Inc v. MAsseags

Opinion

1 2 3 4

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 AMAZON.COM, INC., et al., 9 Plaintiffs, Case No. C21-1456-BJR-SKV 10 v. ORDER GRANTING PLAINTIFFS’ EX PARTE SUPPLEMENTAL 11 XIAOJIE CHEN, et al., MOTION FOR ALTERNATIVE SERVICE 12 Defendants. 13

15 Plaintiffs Amazon.com, Inc. (Amazon) and Streamlight, Inc. (Streamlight) filed an Ex 16 Parte Supplemental Motion for Alternative Service. Dkt. 53. They seek an order authorizing 17 completion of service of process by email on newly named Defendants Xiaojie Chen (Chen), 18 Chunxiong Zhong (Zhong), He Songting (Songting), and Chen Ling (Ling). The Court, having 19 considered the motion, all documents filed in support, and the balance of the record, herein 20 GRANTS Plaintiffs’ motion for the reasons set forth below. 22 This matter involves allegations of trademark infringement, false designation of origin 23 and false advertising under the Lanham Act and violations of the Washington Consumer 1 Protection Act associated with the sale of counterfeit Streamlight products in the Amazon.com 2 store (Amazon Store). See Dkts. 1 & 50. Plaintiffs allege Defendants sold counterfeit goods 3 through a number of different Amazon “Selling Accounts.” Id. 4 Previously, the Court authorized service on unnamed individuals and entities doing

5 business as the Selling Accounts at email addresses used to register the accounts, provided that 6 Plaintiffs were unable to ascertain physical addresses and served Defendants at locations 7 discovered through third-party subpoenas authorized by the Court. Dkt. 15. When investigation 8 into third-party discovery failed to reveal valid physical addresses for Defendants, Plaintiffs 9 served Defendants at the email addresses used to register the Selling Accounts. Dkt. 22. 10 The Court subsequently allowed for additional expedited discovery through subpoenas on 11 virtual payment service providers Payoneer Inc. (Payoneer), LL Pay U.S., LLC (LL Pay), and 12 PingPong Global Solutions, Inc. (PingPong), and on other third parties. Dkt. 43. Through the 13 discovery obtained, Plaintiffs traced the Selling Accounts to Chen, Zhong, Songting, and Ling. 14 Dkt. 53-2, ¶¶5-11. With this information, Plaintiffs filed a First Amended Complaint naming

15 Chen, Zhong, Songting, and Ling as the Defendants to this action. Dkt. 50. 16 The production from Payoneer, LL Pay, and PingPong also included potential physical 17 addresses for Defendants. Dkt. 53-2, ¶¶5-11. Upon investigation, none of the Defendants were 18 found at those addresses. Id. However, the addresses and other information obtained through 19 discovery provide support for the conclusion that Chen, Zhong, Songting, and Ling are likely 20 located in China. Id. 21 Plaintiffs now seek a supplemental order from the Court granting leave to serve 22 Defendants Chen, Zhong, Songting, and Ling via email through the email addresses registered 23 with the Selling Accounts, including the following accounts and associated addresses: (1) CFD 1 Helping Hands (edtytd97@gmail.com); (2) Jarrett’s Fence, LLC (lgzfkmy0ztz4@legislatormail. 2 com; (3) MTT Tech (wfma11@outlook.com); (4) Jerilyn Smith, LLC (hjyezetixgbksz@hotmail. 3 com); (5) Mealight (rlyhqitbdclv@hotmail.com); (6) Doreen Campbell-Isaacs (swsmeffzujqdu@ 4 hotmail.com); (7) SoonS (mdqgqttjfwlpwn@hotmail.com); (8) DiFag (yieijfgduip@hotmail.

5 com); (9) FanRin (snprmtgshmaptn@hotmail.com); (10) Skabul (kjfplgidj@hotmail.com); (11) 6 Tenual (yanseqgfaarp@hotmail.com); and (12) Gemlights (pzumykdikm@hotmail.com). Dkt. 7 53-1, ¶4 & Dkt. 53-2, ¶15. They note that the email addresses were used not only to register the 8 Selling Accounts, but also to receive communications from Amazon and to log into the accounts, 9 and were the primary means of communications from Amazon to Defendants. Dkt. 53-1, ¶5. 10 Plaintiffs also observe that, on October 4, 2023, they emailed Defendants at the registered 11 Selling Account email addresses, apprising Defendants of the pending action and providing 12 copies of the First Amended Complaint, civil cover sheet, and summonses. Dkt. 53-2, ¶15. 13 They did not receive error notices, bounce-back messages, or any other indication that the emails 14 had not been delivered. Id. Plaintiffs seek to serve Defendants using RPost (www.rpost.com),

15 an online service for service of process. Id., ¶16. 17 Federal Rule of Civil Procedure 4(f) permits service of process on individuals in foreign 18 countries by: (1) internationally agreed means of service reasonably calculated to give notice, 19 such as those authorized by the Hague Convention on the Service Abroad of Judicial and 20 Extrajudicial Documents; (2) if there is no internationally agreed means, in accordance with the 21 foreign country’s law; or (3) “by other means not prohibited by international agreement, as the 22 court orders.” Fed. R. Civ. P. 4(f)(3). To obtain a court order under Rule 4(f)(3), a plaintiff must 23 1 “demonstrate that the facts and circumstances of the present case necessitate[] the district court’s 2 intervention.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). 3 In addition to the requirements of Rule 4(f), “a method of service of process must also 4 comport with constitutional notions of due process.” Id. “To meet this requirement, the method

5 of service crafted by the district court must be ‘reasonably calculated, under all the 6 circumstances, to apprise interested parties of the pendency of the action and afford them an 7 opportunity to present their objections.’” Id. at 1016-17 (quoting Mullane v. Cent. Hanover 8 Bank & Trust Co., 339 U.S. 306, 314 (1950)). 9 A. Rule 4(f) 10 Plaintiffs assert their inability to locate a physical address for Chen, Zhong, Songting, or 11 Ling. Dkt. 53-2, ¶¶6-14. Plaintiffs’ investigation and discovery efforts narrowed the likely 12 location of each individual to China. Id. China has been a party to the Hague Convention since 13 1992. See Contracting Parties to Hague Convention, https://www.hcch.net/en/instruments/ 14 conventions/status-table/?cid=17 (last visited October 24, 2023). The Hague Convention

15 expressly “shall not apply where the address of the person to be served with the document is not 16 known.” Hague Convention, T.I.A.S. No. 6638 (Feb. 10, 1969), 20 U.S.T. 361, 1969 WL 97765. 17 Here, because they have been unable to locate a physical address for Chen, Zhong, Songting, or 18 Ling, Plaintiffs could not utilize methods authorized by the Hague Convention. Moreover, 19 because the Convention does not apply, it does not bar service by email. 20 Whether or not the Hague Convention applies, this Court and other courts have 21 concluded that email service on individuals located in China is not prohibited by the Hague 22 Convention or by any other international agreement. See, e.g., Rubie’s Costume Co., Inc. v. Yew 23 Hua Hao Toys Co., C18-1530-RAJ, 2019 WL 6310564, at *3 (W.D. Wash. Nov. 25, 2019) 1 (email service in China “not expressly prohibited by international agreement”). See also 2 Amazon.com, Inc. v. Dafang HaoJiafu Hotpot Store, No. C21-0766-RSM, 2021 WL 4307067, at 3 *1-2 (W.D. Wash. Sept. 22, 2021) (stating “courts in this district regularly authorize requests for 4 service by email on foreign defendants in countries that are parties to the Convention” and

5 granting motion for alternative service in China and Hong Kong). 6 Plaintiffs here demonstrate the need for the Court’s intervention. The Court further finds 7 that service by email is not prohibited by international agreement. Plaintiffs therefore show that 8 an Order permitting service by email comports with Rule 4(f). 9 B. Due Process 10 The Court must also determine whether service of process on Chen, Zhong, Songting, 11 and Ling through email would comport with due process. That is, the Court must consider 12 whether this method of service is “reasonably calculated, under all the circumstances,” to apprise 13 Chen, Zhong, Songting, and Ling of this action and afford them the opportunity to object. 14 Mullane, 339 U.S. at 314.

15 Plaintiffs show that Chen, Zhong, Songting, and Ling are responsible for Payoneer, LL 16 Pay, or PingPong accounts associated with the Selling Accounts at issue and that the above- 17 described email addresses were used to conduct business on Amazon, serve as the primary 18 means of communication between Amazon and Defendants, and that the addresses remain active, 19 as demonstrated by test emails sent successfully and with no indication of a failure to deliver. 20 See Dkt. 53-1, ¶¶4-5, Dkt. 53-2, ¶¶5-10, 15. Plaintiffs argue that this showing supports the 21 conclusion that service on Chen, Zhong, Songting, and Ling by email is reasonably calculated to 22 provide actual notice. 23 1 As found by the Ninth Circuit, the decision to allow service by email lies within the 2 district court’s discretion where the defendant has “structured its business such that it could be 3 contacted only via its email address” and “designated its email address as its preferred contact 4 information.” Rio Props., Inc., 284 F.3d at 1018 (emphasis in original). The situation here is

5 somewhat less clear because Amazon suspended the Selling Accounts at issue. See Dkt. 50, ¶52. 6 As a result, Chen, Zhong, Songting, and Ling no longer conduct business with Amazon through 7 the accounts. Plaintiffs have, however, verified that the email addresses used to register and 8 otherwise associated with the Selling Accounts remain active. 9 This Court has concluded that the due process requirement for alternative service by 10 email is satisfied “when the plaintiff demonstrates that the email addresses at issue are valid and 11 are successfully receiving messages.” Amazon.com Inc. v. KexleWaterFilters, C22-1120-JLR, 12 2023 WL 2017002, at *4 (W.D. Wash. Feb. 15, 2023). The Court has, accordingly, authorized 13 service by email where plaintiffs identified email addresses defendants used for Amazon Selling 14 Accounts and verified the addresses remained active, finding sufficient indicia that the

15 defendants were likely to receive notice if served by email and due process concerns satisfied. 16 See, e.g., Amazon.com, Inc. v. Pengyu Bldg. Materials, No. C21-0358-JNW-SKV, 2023 WL 17 4131609, at *3-4 (W.D. Wash. June 22, 2023); KexleWaterFilters, 2023 WL 3902694, at *2 18 (W.D. Wash. May 31, 2023); Amazon.com Inc. v. Bamb Awns, No. C22-402-MLP, 2023 WL 19 2837076, at *3 (W.D. Wash. Apr. 7, 2023). Accord Bright Sols. for Dyslexia, Inc. v. Lee, C15- 20 1618, 2017 WL 10398818, at *7 (N.D. Cal. Dec. 20, 2017) (finding service by email proper 21 “because Defendants structured their counterfeit business such that they could only be contacted 22 by email[,]” the court authorized service by email, and the emails sent did not bounce back as 23 undeliverable), report and recommendation adopted, 2018 WL 4927702 (N.D. Cal. Mar. 26, 1 2018). In contrast, where plaintiffs did not indicate whether they had attempted to contact any 2 defendants using email addresses associated with Amazon Selling Accounts, nor represented the 3 defendants had notice of the lawsuit, the Court denied service by email upon finding a failure to 4 demonstrate the email addresses were still valid. KexleWaterFilters, 2023 WL 2017002, at *2, 4

5 (permitting plaintiffs to “renew their motion with evidence of recent communications to 6 Defendants that demonstrates that service by email is a reliable method to provide Defendants 7 with notice of the pendency of [the] action.”), renewed motion granted, KexleWaterFilters, 2023 8 WL 3902694, at *2. See also Amazon.com, Inc. v. Tian Ruiping, No. C21-0159-TL, 2022 WL 9 486267, at *3-5 (W.D. Wash. Feb. 17, 2022) (denying alternative service by email where 10 plaintiffs had obtained physical addresses for defendants, but did not demonstrate the addresses 11 were incorrect or inadequate for service, did not show any defendant was aware of the pending 12 action, and did not indicate any attempts to contact defendants, including attempted 13 communication via email, through Selling Accounts, or by any other means). 14 Plaintiffs here demonstrate that all physical addresses obtained in relation to Chen,

15 Zhong, Songting, and Ling were incorrect or otherwise inadequate for service. They also 16 demonstrate that email addresses used by Chen, Zhong, Songting, and Ling to register Amazon 17 Selling Accounts, serving as the primary means of communication with Amazon, and used to 18 conduct business in the Amazon Store remain active. Together, these circumstances provide 19 sufficient indicia that Chen, Zhong, Songting, and Ling are likely to receive notice if served by 20 email. The Court therefore finds service through email is reasonably calculated to apprise Chen, 21 Zhong, Songting, and Ling of this action and provide an opportunity to respond, and thus 22 satisfies concerns of due process. 23 / / / 2 The Court, in sum, GRANTS Plaintiffs’ Ex Parte Motion for Alternative Service. Dkt. 3 53. Specifically, the Court authorizes Plaintiffs to serve Defendants as follows: 4 1. Defendant Xiaojie Chen through the following email addresses registered with Amazon

5 in connection with the CFD Helping Hands and Jarrett’s Fence, LLC Selling Accounts: 6 edtytd97@gmail.com and lgzfkmy0ztz4@legislatormail.com; 7 2. Defendant Chunxiong Zhong through the following email address registered with 8 Amazon in connection with the MTT Tech Selling Account: wfma11@outlook.com; 9 3. He Songting through the following email addresses registered with Amazon in 10 connection with the Jerilyn Smith, LLC, Mealight, and Doreen Campbell-Isaacs Selling 11 Accounts: hjyezetixgbksz@hotmail.com, rlyhqitbdclv@hotmail.com, and 12 swsmeffzujqdu@hotmail.com; and 13 4. Chen Ling through the following email addresses registered with Amazon in connection 14 with the SoonS, DiFag, FanRin, Skabul, Tenual, and Gemlights Selling Accounts:

15 mdqgqttjfwlpwn@hotmail.com, yieijfgduip@hotmail.com, snprmtgshmaptn@ 16 hotmail.com, kjfplgidj@hotmail.com, yanseqgfaarp@hotmail.com, and 17 pzumykdikm@hotmail.com. 18 Plaintiffs are ORDERED to complete service and file proof of service by November 8, 2023. 19 Dated this 25th day of October, 2023. 20 A United States Magistrate Judge 22