Amazon.com Inc v. Phmn9y3v

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 AMAZON.COM INC., et al., 9 Plaintiffs, Case No. C22-840-MJP-MLP 10 v. ORDER 11 PHMN9Y3V, et al., 12 Defendants. 13

14 This matter is before the Court on Plaintiffs Amazon.com Inc., Amazon.com Services, 15 (together, “Amazon”) and Cartier International A.G.’s (“Cartier”; collectively, “Plaintiffs”) Ex 16 Parte Motion for Alternative Service on Defendant Zhou Fuhan (“Plaintiffs’ Motion”). (Pls.’ 17 Mot. (dkt. # 29).) Having considered Plaintiffs’ submissions, the governing law, and the balance 18 of the record, the Court GRANTS Plaintiffs’ Motion (dkt. # 29). 19 I. BACKGROUND 20 Plaintiffs filed their original complaint against: (1) “an individual who goes by the social 21 media handle ‘Phmn9y3v’”; (2) “individual[s] or entit[ies] doing business as” seven Amazon 22 Selling Accounts named Phmn9y3v Jewelry, Vfdnytu, Amazing Jewelry You Want, Miao-He, 23 1 Byqone US, Byqone Network, and Yinji (together, the “Amazon Selling Accounts”); and (3) 2 “Does 1-10.” (Compl. (dkt. # 1) at ¶¶ 14-22.) 3 Utilizing third-party discovery authorized by the Court (dkt. ## 14, 21), Plaintiffs 4 identified the accountholders of virtual bank accounts linked to the Amazon Selling Accounts.

5 (Commerson Decl. (dkt. # 29-1) at ¶ 5-6.) Zhou Fuhan was identified as the registered 6 accountholder for bank accounts that received proceeds from the Byqone US and Byqone 7 Network Amazon Selling Accounts. (Id.) 8 Plaintiffs have now filed an amended complaint, naming as defendants: (1) Li Xinjuan, 9 an individual using the “social media handle ‘Phmn9y3v’” and responsible for the Amazon 10 Selling Accounts Phmn9y3v Jewelry and Miao-He; (2) Shenzhen Xinjianhe Technology Co., 11 Ltd., a corporation owned and operated by Li Xinjuan and registered with the “Phmn9y3v” 12 social media account; (3) Zhu Jian, an individual married to Li Xinjuan and responsible for 13 Phmn9y3v Jewelry, Vfdnytu, Yinji, and Amazing Jewelry You Want; (4) Zhou Fuhan, an 14 individual responsible for Byqone US and Byqone Network; (5) Nghia Choung, an individual

15 whose phone number was registered with Amazon and used to conduct business for six of the 16 seven Amazon Selling Accounts; and (6) “Does 1-10” (collectively, “Defendants”). (Am. 17 Compl. (dkt. # 25) at ¶¶ 16-21.) Plaintiffs allege that Defendants “conspired and operated in 18 concert with each other” to advertise, market, and sell counterfeit Cartier jewelry. (Id. at ¶¶ 1, 19 15.) 20 In a Status Report filed June 26, 2023, Plaintiffs indicate they have located a physical 21 address in China for the first three defendants and are commencing service pursuant to the Hague 22 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or 23 1 Commercial Matters (“Hague Convention”). (Dkt. # 30 at 2.) Plaintiffs have filed proof of 2 service on Nghia Choung. (Dkt. # 28.) 3 Third-party discovery indicated that the only other named defendant, Zhou Fuhan, “is 4 likely in China” but no physical address could be identified. (Commerson Decl. at ¶ 7.) In the

5 instant motion, Plaintiffs seek permission to serve Zhou Fuhan by the alternative method of 6 emailing service of process to two email address provided when registering the Byqone US and 7 Byqone Network Amazon Selling Accounts. (Pls.’ Mot. at 6; see also Commerson Decl. at ¶ 10, 8 Haskel Decl. (dkt. # 29-2) at ¶ 4 (identifying email addresses).) On June 14, 2023, Plaintiffs sent 9 “test emails” to the two addresses and “received no error notices, bounce-back messages, or 10 other indications that the emails failed to deliver.” (Commerson Decl. at ¶ 10.) Plaintiffs propose 11 to serve “using an online service for service of process, RPost (www.rpost.com) that provides 12 proof of authorship, content, delivery, and receipt[.]” (Id. at ¶ 11.) 13 II. DISCUSSION 14 Federal Rule of Civil Procedure 4(f) permits service of process on individuals in foreign

15 countries by: (1) internationally agreed methods such as those authorized by the Hague 16 Convention; (2) if there is no internationally agreed means, in accordance with the foreign 17 country’s law; or (3) by “other means not prohibited by international agreement, as the court 18 orders.” Fed. R. Civ. P. 4(f)(3). To obtain a court order under Rule 4(f)(3), a plaintiff must 19 “demonstrate that the facts and circumstances of the present case necessitated the district court’s 20 intervention.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). 21 In addition to the requirements of Rule 4(f), “a method of service of process must also 22 comport with constitutional notions of due process.” Rio, 284 F.3d at 1016. “To meet this 23 requirement, the method of service crafted by the district court must be ‘reasonably calculated, 1 under all the circumstances, to apprise interested parties of the pendency of the action and afford 2 them an opportunity to present their objections.’” Id. at 1016-17 (quoting Mullane v. Cent. 3 Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). 4 A. Rule 4(f)

5 Plaintiffs request Court intervention because they “do not have a valid physical address 6 for Fuhan and are unable to serve them by conventional means[.]” (Pls.’ Mot. at 2.) The Court 7 concludes that Plaintiffs have adequately shown that the Court’s intervention is necessary. 8 Despite “months of discovery and investigation,” Plaintiffs have been unable to locate a physical 9 address for Zhou Fuhan and the email addresses “are the only valid pieces of contact 10 information” Plaintiffs have. (Commerson Decl. at ¶ 10; Pls.’ Mot. at 6-7.) 11 Plaintiffs contend Rule 4(f)(3) and the Hague Convention “both allow for service by 12 email” on defendants located in China. (Pls.’ Mot. at 8.) China, like the United States, is a party 13 to the Hague Convention. See Contracting Parties, available at 14 https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last viewed July 13,

15 2023). The Hague Convention expressly “shall not apply where the address of the person to be 16 served with the document is not known.” Hague Convention, art. 1, available at 17 https://www.hcch.net/en/instruments/conventions/full-text/?cid=17 (last viewed July 13, 2023). 18 Plaintiffs here have been unable to locate a physical address for Zhou Fuhan, and thus, could not 19 utilize methods authorized by the Hague Convention. (Commerson Decl. at ¶¶ 7, 10.) 20 Nevertheless, whether or not the Hague Convention applies, this Court and others have 21 concluded that email service on individuals located in China is not prohibited by it or any other 22 international agreement. See Rubie’s Costume Co., Inc. v. Yiwu Hua Hao Toys Co., 2019 WL 23 6310564, at *3 (W.D. Wash. Nov. 25, 2019) (email service in China “not expressly prohibited by 1 international agreement”). The Court therefore concludes that service by email is not prohibited 2 by international agreement. Plaintiffs have shown that an order permitting service by email 3 would comport with Rule 4(f). 4 B. Due Process

5 The Court next considers whether service of process using the currently functional email 6 addresses associated with Zhou Fuhan’s Amazon Selling Accounts comports with constitutional 7 due process—that is, whether this method of service is “reasonably calculated, under all the 8 circumstances, to apprise interested parties of the pendency of the action and afford them an 9 opportunity to present their objections.” Mullane, 339 U.S. at 314. 10 Plaintiffs contend email service comports with due process because: (1) the email 11 addresses “are the primary means of communication” between Amazon and Zhou Fuhan related 12 to the Amazon Selling Accounts; and (2) “Plaintiffs recently sent ‘test’ emails to each email 13 address and have confirmed that both registered email addresses remain functional[.]” (Pls.’ Mot. 14 at 9 (citing Haskel Decl. ¶¶ 4-5).)

15 Plaintiffs point to Facebook, Inc. v. Banana Ads, LLC, where a court authorized service 16 via email on foreign defendants who “rely on electronic communications to operate their 17 businesses” and for whom plaintiff had “valid email addresses[.]” 2012 WL 1038752, at *2 18 (N.D. Cal. Mar. 27, 2012). In that case, however, it appears that the defendants’ businesses were 19 ongoing and used internet domain names that, when registered, “required [defendants] to provide 20 accurate contact information and to update that information.” Id. at *1. Plaintiffs also point to 21 Rio, where the Ninth Circuit concluded that ordering service by email was within the district 22 court’s discretion where the defendant had “structured its business such that it could be contacted 23 only via its email address” and “designated its email address as its preferred contact 1 information.” 284 F.3d at 1018. In that case, as in Facebook, the defendant’s business was 2 ongoing. Id. at 1012-13. 3 The situation is somewhat less clear here, however, as Zhou Fuhan’s businesses using the 4 Byqone US and Byqone Network Amazon Selling Accounts are no longer operating. Plaintiffs

5 allege that, “through at least April 2021, Defendant Zhou Fuhan advertised . . . and sold 6 inauthentic Cartier [jewelry]” via the Byqone US and Byqone Network Amazon Selling 7 Accounts. (Am. Compl. at ¶¶ 64-67.) At some later point, however, “Amazon . . . blocked 8 Defendants’ Selling Accounts.” (Id. at ¶ 73.) It is unclear when Amazon blocked the Amazon 9 Selling Accounts and whether Zhou Fuhan was notified. 10 Nevertheless, Plaintiffs provide evidence that the email addresses they propose effecting 11 service through were actively used in operating the Byqone US and Byqone Network businesses. 12 Individuals “registered email addresses in order to create their Selling Accounts . . . and conduct 13 business through their Selling Accounts.” (Haskel Decl. at ¶ 5.) “Amazon’s records establish that 14 these individuals responsible for the Selling Accounts received and responded to

15 communications from Amazon using these email addresses, and logged into their Selling 16 Accounts using these email addresses.” (Id.) And Plaintiffs have verified that the email addresses 17 remain active. (See Commerson Decl. at ¶ 10.) This provides some evidence that Zhou Fuhan is 18 still using those addresses. 19 In a similar situation in Bright Solutions for Dyslexia, alternative service by email was 20 used where plaintiffs were “unable to locate [d]efendants and believed they may have moved to 21 China.” Bright Sols. for Dyslexia, Inc. v. Lee, 2017 WL 10398818, at *4 (N.D. Cal. Dec. 20, 22 2017), report and recommendation adopted, 2018 WL 4927702 (N.D. Cal. Mar. 26, 2018). The 23 plaintiffs obtained email addresses associated with eBay online seller accounts that defendants 1 had used to sell allegedly counterfeit products. Id. at *3. “No errors were received” when 2 plaintiffs sent test emails to two of the addresses. Id. The court granted plaintiffs’ motion for 3 alternative service by email, and granted default judgment after defendants failed to respond 4 even though “the emails had been successfully delivered with no errors.” Id. at *4. The court

5 concluded “email service was proper because [d]efendants structured their counterfeit business 6 such that they could only be contacted by email” and, when served by email, “[t]hese emails did 7 not bounce back.” Id. at *7. 8 In contrast, in Amazon.com Inc. v. KexleWaterFilters, this Court denied alternative 9 service by email because plaintiffs had not shown sufficient “indicia that the defendants would in 10 fact receive notice of the lawsuit if the plaintiffs served them by email.” Amazon.com, Inc. v. 11 KexleWaterFilters, 2023 WL 2017002, at *4 (W.D. Wash. Feb. 15, 2023). The approach in 12 Bright Solutions for Dyslexia was endorsed by this Court in that case, but in KexleWaterFilters, 13 the plaintiffs had “not demonstrated that the email addresses associated with [d]efendants’ 14 Selling Accounts are still valid[.]” Id. Plaintiffs were permitted to “renew their motion with

15 evidence of recent communications to [d]efendants that demonstrates that service by email is a 16 reliable method to provide [d]efendants with notice of the pendency of this action.” Id. 17 Here, as in Bright Solutions for Dyslexia, Plaintiffs have identified email addresses that 18 Zhou Fuhan used in their online businesses, and verified that those email addresses remain 19 active. As in Bright Solutions for Dyslexia, Zhou Fuhan structured their counterfeit business such 20 that they can only be contacted by email. Together, these circumstances provide sufficient 21 indicia that Zhou Fuhan is likely to receive notice if served by email.1 Moreover, service via 22 1 See also Amazon.com Inc., et al. v. Yong et al., C21-170-RSM-SKV, dkt. # 51 (W.D. Wash. Apr. 25, 23 2023) (Order granting alternative service where email addresses that were “the primary means of communication with Amazon, and used to conduct business in the Amazon Store remain active.”). But 1 RPost should, according to Plaintiffs’ representations to the Court, provide evidence as to 2 whether service by email was, in fact, received. This offers reassurance that if the email 3 addresses are not, in fact, being monitored and used, then service will not be erroneously deemed 4 completed.

5 The Court concludes service via the email addresses is reasonably calculated to apprise 6 Zhou Fuhan of this action and provide them an opportunity to respond, and thus satisfies due 7 process concerns. 8 III. CONCLUSION 9 For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion (dkt. # 29). Plaintiffs 10 are authorized to serve Defendant Zhou Fuhan via the email addresses jiali92043399@126.com 11 and na1054829jiyeweng@163.com. Plaintiffs are ORDERED to complete service and file proof 12 of service by July 28, 2023. 13 The Clerk is directed to send copies of this Order to the parties and to the Honorable 14 Marsha J. Pechman.

15 Dated this 18th day of July, 2023. 16 A 17 MICHELLE L. PETERSON United States Magistrate Judge 18 19 20 21

22 see Amazon.com, Inc., et al. v. Dong, et al., C21-159-TL-BAT, dkt. # 42 (W.D. Wash. June 21, 2023) (Order denying alternative service without prejudice where “Amazon terminated Defendants’ Selling 23 Accounts sometime in 2019 and 2020” and Plaintiffs had “show[n] only that a particular email address is still functioning, not that Defendants are in fact, monitoring the email accounts or receiving the messages.”).