1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FACEBOOK, INC., et al., Case No. 20-cv-08153-JSC
8 Plaintiffs, ORDER RE: PLAINTIFFS’ MOTION 9 v. FOR ALTERNATIVE SERVICE
10 ENSAR SAHINTURK, Re: Dkt. No. 17 Defendant. 11
12 13 Facebook and Instagram bring this trademark infringement and cybersquatting action 14 against Ensar Sahinturk, a resident of Istanbul, Turkey. Plaintiffs have attempted to locate Mr. 15 Sahinturk’s physical address in Turkey to serve him through the Hague Convention, but they have 16 been unable to do so. As such, Plaintiffs seek leave to serve Mr. Sahinturk via alternative email 17 service under Federal Rule of Civil Procedure 4(f)(3). (Dkt. No. 17. 1) After carefully considering 18 Plaintiffs’ motion and the relevant legal authority, the Court concludes that oral argument is 19 unnecessary, see Civ. L.R. 7-1(b), VACATES the September 30, 2021 hearing date, and 20 GRANTS the motion for alternative service. 21 BACKGROUND 22 Plaintiffs allege that since at least August 2017, Mr. Sahinturk has “created and maintained 23 a network of ‘clone’ Instagram websites and web viewers[] which displayed Instagram users’ 24 public profiles without their knowledge or consent.” (Complaint at ¶ 1.) Mr. Sahinturk allegedly 25 used automated software to “scrape” or otherwise improperly collect Instagram users’ publicly 26 viewable profiles, including photos, videos, and profile information. (Id.) The automated software 27 1 was able to “evade[] Instagram’s technical restrictions by falsely identifying itself as a legitimate 2 Instagram user’s Android device connected to the official Instagram mobile application.” (Id.) 3 Using this software, Mr. Sahinkturk was able to scrape and republish the information of over 4 100,000 Instagram users. (Id.) Plaintiffs have taken technical and legal actions against Mr. 5 Sahinkturk including disabling accounts and sending cease and desist letters, but his misuse of this 6 information continues. (Id. at ¶ 2.) 7 In November 2020, Plaintiffs filed this action alleging breach of contract, trademark 8 infringement, cybersquatting, and unjust enrichment seeking to stop Mr. Sahinkturk’s continued 9 misuse of their platforms and for compensatory and punitive damages. (Dkt. No. 1.) Shortly 10 after the action was filed, Plaintiffs emailed a copy of the complaint and summons to the email 11 address that Mr. Sahinturk used to register his clone sites (esahinturk@gmail.com), and requested 12 that he waive service. (Dkt. No. 1-1 at 19-36; Dkt. No. 17-1 at ¶ 4.) At the same time, Plaintiffs 13 retained a process server experienced with international litigation to assist with service in 14 accordance with the Hague Convention. (Id. at ¶ 2.) On March 1, 2021, the process server, 15 Celeste Ingalls, advised Plaintiffs’ counsel that the translated documents required for service had 16 been sent to the Turkish Ministry of Justice and that service under the Hague Convention could 17 take up to eight months. (Id. at ¶ 3.) 18 On August 13, 2021, Plaintiffs received a certificate of nonservice from the Turkish 19 Ministry of Justice, citing “insufficient address” as the reason service was not completed. (Id.) 20 Prior to receipt of the certificate of non-service, Plaintiffs emailed Mr. Sahinturk at 21 esahinkturk@gmail.com several times requesting that he waive formal service. (Id. at ¶ 4.) On 22 July 31, 2021, an individual named Azat Metin responded to an email from Plaintiffs’ counsel to 23 esahinturk@gmail.com regarding a stipulation to continue the case management conference. (Id. 24 at ¶ 5.) Mr. Metin copied esahinturk@gmail.com on his email and requested a Zoom meeting. 25 (Id.) A few days later, Mr. Sahinturk emailed Plaintiffs’ counsel using the esahinturk@gmail.com 26 email address. (Id.) 27 On August 6, 2021, Plaintiffs’ counsel met with Mr. Sahinturk via Zoom and again 1 follow-up emails requesting that Mr. Sahinturk waive service and provide his physical address. 2 (Id. at ¶ 6.) Neither Mr. Sahinturk nor Mr. Metin have responded to the emails. (Id.) 3 On August 17, 2021, Facebook’s investigative team conducted further follow-up to find 4 Mr. Sahinturk’s physical address, including through researching registrations and address details 5 for other businesses associated with Mr. Sahinturk, running online searches, and reviewing public 6 records, but they were unable to determine his physical address. (Id. at ¶ 7.) This motion 7 followed. 8 DISCUSSION 9 Federal Rule of Civil Procedure 4(f) provides the applicable authority for serving an 10 individual in a foreign country. Under Rule 4(f)(3), courts can order service through a variety of 11 methods, “including publication, ordinary mail, mail to the defendant’s last known address, 12 delivery to the defendant’s attorney, telex, and most recently, email[,]” so long as the method of 13 service is not prohibited by an international agreement. Rio Props., Inc. v. Rio Intern. Interlink, 14 284 F.3d 1007, 1016 (9th Cir. 2002) (citation omitted). “However, the fact that an alternative 15 method of service is not prohibited by international agreement does not mean that the plaintiff is 16 entitled to use such a method under Rule 4(f)(3).” Keck v. Alibaba.com, Inc., 330 F.R.D. 255, 17 257–58 (N.D. Cal. 2018). It is within a court’s “sound discretion” to determine whether “the 18 particularities and necessities of a given case require alternate service of process under Rule 19 4(f)(3).” Rio Properties, 284 F.3d at 1016. 20 To comport with due process, alternate service of process must be “reasonably calculated 21 to apprise interested parties of the pendency of the action and afford them an opportunity to 22 present their objections.” Id. at 1016–17 (citation omitted). Service by email may be proper where 23 (1) international agreement does not prohibit service by email, and (2) service by email is 24 reasonably calculated to provide actual notice to the defendant. See D.Light Design, Inc. v. Boxin 25 Solar Co., No. C–13–5988 EMC, 2015 WL 526835, at *1 (N.D. Cal. Feb. 6, 2015) (collecting 26 cases). Plaintiffs have made a sufficient showing that alternative service by email is warranted 27 here. 1 States and Turkey are parties to the Hague Convention. See Hague Service Convention Status 2 || Table, http://www.hcch.net/index_en.php?act=conventions.status&cid=17 (last visited Sept. 14, 3 |} 2021). Although compliance with the Hague Service Convention is mandatory, Article | of the 4 || Hague Service Convention states that it does not apply “where the address of the person to be 5 served with the document is not known.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 6 694, 699 (1988); Hague Service Convention art. 1. Plaintiffs have met their burden of 7 demonstrating that Mr. Sahinturk’s address is “not known” because they have repeatedly 8 || requested that he provide them with his physical address and have conducted their own 9 investigation into his address—all to no avail. (Dkt. No. 17-1 at ¥] 3, 6-7.) 10 Second, Plaintiffs have demonstrated that service by email comports with due process. 11 Plaintiffs have corresponded with Mr. Sahinturk at the email address which they propose to use 12 for service, esahinturk @ gmail.com, and have thus demonstrated that it is a real email address that 13 he uses. See, e.g., See Hillbroom v. Lujan, 2010 WL 11515374, at *2 (C.D. Cal. May 3, 2010) 14 (permitting service of foreign individual by email where individual used the subject email address 3 15 to communicate with counsel); Goes Int’l, AB v. Dodur Ltd., No. 14-CV-5666, 2015 WL 1743393, a 16 at *3 (N.D. Cal. Apr.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FACEBOOK, INC., et al., Case No. 20-cv-08153-JSC
8 Plaintiffs, ORDER RE: PLAINTIFFS’ MOTION 9 v. FOR ALTERNATIVE SERVICE
10 ENSAR SAHINTURK, Re: Dkt. No. 17 Defendant. 11
12 13 Facebook and Instagram bring this trademark infringement and cybersquatting action 14 against Ensar Sahinturk, a resident of Istanbul, Turkey. Plaintiffs have attempted to locate Mr. 15 Sahinturk’s physical address in Turkey to serve him through the Hague Convention, but they have 16 been unable to do so. As such, Plaintiffs seek leave to serve Mr. Sahinturk via alternative email 17 service under Federal Rule of Civil Procedure 4(f)(3). (Dkt. No. 17. 1) After carefully considering 18 Plaintiffs’ motion and the relevant legal authority, the Court concludes that oral argument is 19 unnecessary, see Civ. L.R. 7-1(b), VACATES the September 30, 2021 hearing date, and 20 GRANTS the motion for alternative service. 21 BACKGROUND 22 Plaintiffs allege that since at least August 2017, Mr. Sahinturk has “created and maintained 23 a network of ‘clone’ Instagram websites and web viewers[] which displayed Instagram users’ 24 public profiles without their knowledge or consent.” (Complaint at ¶ 1.) Mr. Sahinturk allegedly 25 used automated software to “scrape” or otherwise improperly collect Instagram users’ publicly 26 viewable profiles, including photos, videos, and profile information. (Id.) The automated software 27 1 was able to “evade[] Instagram’s technical restrictions by falsely identifying itself as a legitimate 2 Instagram user’s Android device connected to the official Instagram mobile application.” (Id.) 3 Using this software, Mr. Sahinkturk was able to scrape and republish the information of over 4 100,000 Instagram users. (Id.) Plaintiffs have taken technical and legal actions against Mr. 5 Sahinkturk including disabling accounts and sending cease and desist letters, but his misuse of this 6 information continues. (Id. at ¶ 2.) 7 In November 2020, Plaintiffs filed this action alleging breach of contract, trademark 8 infringement, cybersquatting, and unjust enrichment seeking to stop Mr. Sahinkturk’s continued 9 misuse of their platforms and for compensatory and punitive damages. (Dkt. No. 1.) Shortly 10 after the action was filed, Plaintiffs emailed a copy of the complaint and summons to the email 11 address that Mr. Sahinturk used to register his clone sites (esahinturk@gmail.com), and requested 12 that he waive service. (Dkt. No. 1-1 at 19-36; Dkt. No. 17-1 at ¶ 4.) At the same time, Plaintiffs 13 retained a process server experienced with international litigation to assist with service in 14 accordance with the Hague Convention. (Id. at ¶ 2.) On March 1, 2021, the process server, 15 Celeste Ingalls, advised Plaintiffs’ counsel that the translated documents required for service had 16 been sent to the Turkish Ministry of Justice and that service under the Hague Convention could 17 take up to eight months. (Id. at ¶ 3.) 18 On August 13, 2021, Plaintiffs received a certificate of nonservice from the Turkish 19 Ministry of Justice, citing “insufficient address” as the reason service was not completed. (Id.) 20 Prior to receipt of the certificate of non-service, Plaintiffs emailed Mr. Sahinturk at 21 esahinkturk@gmail.com several times requesting that he waive formal service. (Id. at ¶ 4.) On 22 July 31, 2021, an individual named Azat Metin responded to an email from Plaintiffs’ counsel to 23 esahinturk@gmail.com regarding a stipulation to continue the case management conference. (Id. 24 at ¶ 5.) Mr. Metin copied esahinturk@gmail.com on his email and requested a Zoom meeting. 25 (Id.) A few days later, Mr. Sahinturk emailed Plaintiffs’ counsel using the esahinturk@gmail.com 26 email address. (Id.) 27 On August 6, 2021, Plaintiffs’ counsel met with Mr. Sahinturk via Zoom and again 1 follow-up emails requesting that Mr. Sahinturk waive service and provide his physical address. 2 (Id. at ¶ 6.) Neither Mr. Sahinturk nor Mr. Metin have responded to the emails. (Id.) 3 On August 17, 2021, Facebook’s investigative team conducted further follow-up to find 4 Mr. Sahinturk’s physical address, including through researching registrations and address details 5 for other businesses associated with Mr. Sahinturk, running online searches, and reviewing public 6 records, but they were unable to determine his physical address. (Id. at ¶ 7.) This motion 7 followed. 8 DISCUSSION 9 Federal Rule of Civil Procedure 4(f) provides the applicable authority for serving an 10 individual in a foreign country. Under Rule 4(f)(3), courts can order service through a variety of 11 methods, “including publication, ordinary mail, mail to the defendant’s last known address, 12 delivery to the defendant’s attorney, telex, and most recently, email[,]” so long as the method of 13 service is not prohibited by an international agreement. Rio Props., Inc. v. Rio Intern. Interlink, 14 284 F.3d 1007, 1016 (9th Cir. 2002) (citation omitted). “However, the fact that an alternative 15 method of service is not prohibited by international agreement does not mean that the plaintiff is 16 entitled to use such a method under Rule 4(f)(3).” Keck v. Alibaba.com, Inc., 330 F.R.D. 255, 17 257–58 (N.D. Cal. 2018). It is within a court’s “sound discretion” to determine whether “the 18 particularities and necessities of a given case require alternate service of process under Rule 19 4(f)(3).” Rio Properties, 284 F.3d at 1016. 20 To comport with due process, alternate service of process must be “reasonably calculated 21 to apprise interested parties of the pendency of the action and afford them an opportunity to 22 present their objections.” Id. at 1016–17 (citation omitted). Service by email may be proper where 23 (1) international agreement does not prohibit service by email, and (2) service by email is 24 reasonably calculated to provide actual notice to the defendant. See D.Light Design, Inc. v. Boxin 25 Solar Co., No. C–13–5988 EMC, 2015 WL 526835, at *1 (N.D. Cal. Feb. 6, 2015) (collecting 26 cases). Plaintiffs have made a sufficient showing that alternative service by email is warranted 27 here. 1 States and Turkey are parties to the Hague Convention. See Hague Service Convention Status 2 || Table, http://www.hcch.net/index_en.php?act=conventions.status&cid=17 (last visited Sept. 14, 3 |} 2021). Although compliance with the Hague Service Convention is mandatory, Article | of the 4 || Hague Service Convention states that it does not apply “where the address of the person to be 5 served with the document is not known.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 6 694, 699 (1988); Hague Service Convention art. 1. Plaintiffs have met their burden of 7 demonstrating that Mr. Sahinturk’s address is “not known” because they have repeatedly 8 || requested that he provide them with his physical address and have conducted their own 9 investigation into his address—all to no avail. (Dkt. No. 17-1 at ¥] 3, 6-7.) 10 Second, Plaintiffs have demonstrated that service by email comports with due process. 11 Plaintiffs have corresponded with Mr. Sahinturk at the email address which they propose to use 12 for service, esahinturk @ gmail.com, and have thus demonstrated that it is a real email address that 13 he uses. See, e.g., See Hillbroom v. Lujan, 2010 WL 11515374, at *2 (C.D. Cal. May 3, 2010) 14 (permitting service of foreign individual by email where individual used the subject email address 3 15 to communicate with counsel); Goes Int’l, AB v. Dodur Ltd., No. 14-CV-5666, 2015 WL 1743393, a 16 at *3 (N.D. Cal. Apr. 16, 2015) (same). Under these circumstances, service of the summons and 3 17 complaint on Mr. Sahinturk at this email address is reasonably calculated to provide him notice of 18 the lawsuit and provide him an opportunity to present any objections. 19 CONCLUSION 20 For the reasons stated above, the Court GRANTS Plaintiffs’ motion to serve Mr. Sahinturk 21 by alternative email service. 22 This Order disposes of Docket No. 17. 23 IT IS SO ORDERED. 24 || Dated: September 21, 2021 25 h □ 2 26 nm JA@QURLINE SCOTT CORLEY 27 United States Magistrate Judge 28