1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Fornix Holdings LLC, et al., No. CV-22-01275-PHX-DWL
10 Plaintiffs, ORDER
11 v.
12 David Pepin,
13 Defendant. 14 15 Pending before the Court is Plaintiffs’ ex parte application for an order authorizing 16 alternative service of process (“the Application”). (Doc. 11.) For the following reasons, 17 the Application is granted. 18 BACKGROUND 19 On July 29, 2022, Plaintiffs filed the complaint against Defendant David Pepin, 20 alleging copyright infringement. (Doc. 1.) Specifically, the complaint alleges that 21 Plaintiff Fornix Holdings LLC (“Fornix”) is the registered copyright owner of myriad 22 audiovisual works of adult video content which it licenses exclusively to Plaintiff CP 23 Productions, Inc. (“CP Productions”) for publication on its membership-based adult 24 website. (Id. ¶¶ 2-4.) Pepin allegedly accessed 11 of Fornix’s copyrighted movies 25 through his membership to CP Productions’ website, copied them, and publicly 26 distributed them via several file-sharing websites. (Id. ¶ 5.) 27 On September 19, 2022, Plaintiffs filed the Application. (Doc. 11.) Attached is a 28 declaration in which Plaintiff’s counsel, David D. Lin, avers that two addresses in Canada 1 were located via “both public and paid background searches” on Pepin, but the first, 2 “which appears to be an office,” has rejected mail sent through FedEx and seems to be a 3 place where “Pepin no longer works,” and the second is the address of a person named 4 David Pepin who claims not to be the same person as the David Pepin named in this 5 lawsuit. (Doc. 11-2 ¶¶ 6-7, 11, 17-21.) Thus, Plaintiffs and their counsel “have been 6 unable to determine an exact location within Canada where Defendant resides.” (Id. ¶ 7 23.) They do, however, possess an email address where email correspondence has been 8 successfully delivered. (Id. ¶¶ 5, 10, 15.) Thus, Plaintiffs seek a court order permitting 9 service via email pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure. 10 DISCUSSION 11 I. Legal Standard 12 Federal Rule of Civil Procedure 4(f) provides that service on an individual in a 13 foreign country may be accomplished:
14 (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague 15 Convention on the Service Abroad of Judicial and Extrajudicial Documents; 16 (2) if there is no internationally agreed means, or if an international 17 agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: 18 (A) as prescribed by the foreign country’s law for service in that 19 country in an action in its courts of general jurisdiction;
20 (B) as the foreign authority directs in response to a letter rogatory or letter of request; or 21 (C) unless prohibited by the foreign country’s law, by: 22 (i) delivering a copy of the summons and of the complaint 23 to the individual personally; or
24 (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed 25 receipt; or
26 (3) by other means not prohibited by international agreement, as the court orders. 27 28 “As obvious from its plain language, service under Rule 4(f)(3) must be (1) 1 directed by the court; and (2) not prohibited by international agreement.” Rio Properties, 2 Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). “No other limitations are 3 evident from the text.” Id. “In fact, as long as court-directed and not prohibited by an 4 international agreement, service of process ordered under Rule 4(f)(3) may be 5 accomplished in contravention of the laws of the foreign country.” Id. Rule 4(f) does not 6 “create a hierarchy of preferred methods of service of process”; rather, “court-directed 7 service under Rule 4(f)(3) is as favored as service available under Rule 4(f)(1) or Rule 8 4(f)(2).” Id. at 1014-15. As such, a plaintiff need not “attempt[] permissible means of 9 service of process before petitioning the court” for leave to serve by alternative means. 10 Id. at 1016. Instead, a plaintiff must demonstrate only “that the facts and circumstances 11 of the present case necessitate[] the district court’s intervention,” in which case the 12 district court can “properly exercise[] its discretionary powers to craft alternate means of 13 service”—so long as the alternative means “comport with constitutional notions of due 14 process” and are not prohibited by international agreement. Id. 15 II. Analysis 16 Intervention is warranted in light of the facts and circumstances of this case. 17 Plaintiffs have attempted to discover Pepin’s whereabouts and their attempts have been 18 unsuccessful. 19 Furthermore, serving Pepin via email would “comport with constitutional notions 20 of due process.” Id. “To meet this requirement, the method of service crafted by the 21 district court must be reasonably calculated, under all the circumstances, to apprise 22 interested parties of the pendency of the action and afford them an opportunity to present 23 their objections.” Id. (internal quotation marks omitted). In Rio, where the defendant had 24 no easily ascertainable physical address and email was its primary method of 25 communication, the Ninth Circuit concluded “not only that service of process by email 26 was proper—that is, reasonably calculated to apprise [the defendant] of the pendency of 27 the action and afford it an opportunity to respond—but in this case, it was the method of 28 service most likely to reach [the defendant].” Id. at 1017. The same is true under the 1 facts of this case.1 2 The one remaining issue is whether service by email is “not prohibited by 3 international agreement.” Id. at 1014; Fed. R. Civ. P. 4(f)(3). In Rio, no international 4 agreement was at issue. The Ninth Circuit noted that “[a] federal court would be 5 prohibited from issuing a Rule 4(f)(3) order in contravention of an international 6 agreement, including the Hague Convention referenced in Rule 4(f)(1),” but because the 7 defendant was in Costa Rica, which was “not a signatory,” the Hague Service Convention 8 did “not apply” in that case. 284 F.3d at 1015 n.4. 9 “The Hague Service Convention is a multilateral treaty . . . intended to provide a 10 simpler way to serve process abroad, to assure that defendants sued in foreign 11 jurisdictions would receive actual and timely notice of suit, and to facilitate proof of 12 service abroad.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 13 (1988). Article 1 of the Convention specifies that it applies “in all cases, in civil or 14 commercial matters, where there is occasion to transmit a judicial or extrajudicial 15 document for service abroad,” but it does not apply “where the address of the person to 16 be served with the document is not known.” Art. 1. 17 Pepin’s address is unknown, and therefore the Hague Service Convention does not 18 apply and Rio controls. Cf. Media Trademark & Licensing Ltd. v. 19 COINGEEKLTD.COM, 2021 WL 2895289 (D. Ariz. 2021) (distinguishing Rio in a case 20 where the defendant’s address appeared to be known). 21 Accordingly, 22 IT IS ORDERED that Plaintiffs’ Application (Doc. 11) is granted. 23 … 24 …
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Fornix Holdings LLC, et al., No. CV-22-01275-PHX-DWL
10 Plaintiffs, ORDER
11 v.
12 David Pepin,
13 Defendant. 14 15 Pending before the Court is Plaintiffs’ ex parte application for an order authorizing 16 alternative service of process (“the Application”). (Doc. 11.) For the following reasons, 17 the Application is granted. 18 BACKGROUND 19 On July 29, 2022, Plaintiffs filed the complaint against Defendant David Pepin, 20 alleging copyright infringement. (Doc. 1.) Specifically, the complaint alleges that 21 Plaintiff Fornix Holdings LLC (“Fornix”) is the registered copyright owner of myriad 22 audiovisual works of adult video content which it licenses exclusively to Plaintiff CP 23 Productions, Inc. (“CP Productions”) for publication on its membership-based adult 24 website. (Id. ¶¶ 2-4.) Pepin allegedly accessed 11 of Fornix’s copyrighted movies 25 through his membership to CP Productions’ website, copied them, and publicly 26 distributed them via several file-sharing websites. (Id. ¶ 5.) 27 On September 19, 2022, Plaintiffs filed the Application. (Doc. 11.) Attached is a 28 declaration in which Plaintiff’s counsel, David D. Lin, avers that two addresses in Canada 1 were located via “both public and paid background searches” on Pepin, but the first, 2 “which appears to be an office,” has rejected mail sent through FedEx and seems to be a 3 place where “Pepin no longer works,” and the second is the address of a person named 4 David Pepin who claims not to be the same person as the David Pepin named in this 5 lawsuit. (Doc. 11-2 ¶¶ 6-7, 11, 17-21.) Thus, Plaintiffs and their counsel “have been 6 unable to determine an exact location within Canada where Defendant resides.” (Id. ¶ 7 23.) They do, however, possess an email address where email correspondence has been 8 successfully delivered. (Id. ¶¶ 5, 10, 15.) Thus, Plaintiffs seek a court order permitting 9 service via email pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure. 10 DISCUSSION 11 I. Legal Standard 12 Federal Rule of Civil Procedure 4(f) provides that service on an individual in a 13 foreign country may be accomplished:
14 (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague 15 Convention on the Service Abroad of Judicial and Extrajudicial Documents; 16 (2) if there is no internationally agreed means, or if an international 17 agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: 18 (A) as prescribed by the foreign country’s law for service in that 19 country in an action in its courts of general jurisdiction;
20 (B) as the foreign authority directs in response to a letter rogatory or letter of request; or 21 (C) unless prohibited by the foreign country’s law, by: 22 (i) delivering a copy of the summons and of the complaint 23 to the individual personally; or
24 (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed 25 receipt; or
26 (3) by other means not prohibited by international agreement, as the court orders. 27 28 “As obvious from its plain language, service under Rule 4(f)(3) must be (1) 1 directed by the court; and (2) not prohibited by international agreement.” Rio Properties, 2 Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). “No other limitations are 3 evident from the text.” Id. “In fact, as long as court-directed and not prohibited by an 4 international agreement, service of process ordered under Rule 4(f)(3) may be 5 accomplished in contravention of the laws of the foreign country.” Id. Rule 4(f) does not 6 “create a hierarchy of preferred methods of service of process”; rather, “court-directed 7 service under Rule 4(f)(3) is as favored as service available under Rule 4(f)(1) or Rule 8 4(f)(2).” Id. at 1014-15. As such, a plaintiff need not “attempt[] permissible means of 9 service of process before petitioning the court” for leave to serve by alternative means. 10 Id. at 1016. Instead, a plaintiff must demonstrate only “that the facts and circumstances 11 of the present case necessitate[] the district court’s intervention,” in which case the 12 district court can “properly exercise[] its discretionary powers to craft alternate means of 13 service”—so long as the alternative means “comport with constitutional notions of due 14 process” and are not prohibited by international agreement. Id. 15 II. Analysis 16 Intervention is warranted in light of the facts and circumstances of this case. 17 Plaintiffs have attempted to discover Pepin’s whereabouts and their attempts have been 18 unsuccessful. 19 Furthermore, serving Pepin via email would “comport with constitutional notions 20 of due process.” Id. “To meet this requirement, the method of service crafted by the 21 district court must be reasonably calculated, under all the circumstances, to apprise 22 interested parties of the pendency of the action and afford them an opportunity to present 23 their objections.” Id. (internal quotation marks omitted). In Rio, where the defendant had 24 no easily ascertainable physical address and email was its primary method of 25 communication, the Ninth Circuit concluded “not only that service of process by email 26 was proper—that is, reasonably calculated to apprise [the defendant] of the pendency of 27 the action and afford it an opportunity to respond—but in this case, it was the method of 28 service most likely to reach [the defendant].” Id. at 1017. The same is true under the 1 facts of this case.1 2 The one remaining issue is whether service by email is “not prohibited by 3 international agreement.” Id. at 1014; Fed. R. Civ. P. 4(f)(3). In Rio, no international 4 agreement was at issue. The Ninth Circuit noted that “[a] federal court would be 5 prohibited from issuing a Rule 4(f)(3) order in contravention of an international 6 agreement, including the Hague Convention referenced in Rule 4(f)(1),” but because the 7 defendant was in Costa Rica, which was “not a signatory,” the Hague Service Convention 8 did “not apply” in that case. 284 F.3d at 1015 n.4. 9 “The Hague Service Convention is a multilateral treaty . . . intended to provide a 10 simpler way to serve process abroad, to assure that defendants sued in foreign 11 jurisdictions would receive actual and timely notice of suit, and to facilitate proof of 12 service abroad.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 13 (1988). Article 1 of the Convention specifies that it applies “in all cases, in civil or 14 commercial matters, where there is occasion to transmit a judicial or extrajudicial 15 document for service abroad,” but it does not apply “where the address of the person to 16 be served with the document is not known.” Art. 1. 17 Pepin’s address is unknown, and therefore the Hague Service Convention does not 18 apply and Rio controls. Cf. Media Trademark & Licensing Ltd. v. 19 COINGEEKLTD.COM, 2021 WL 2895289 (D. Ariz. 2021) (distinguishing Rio in a case 20 where the defendant’s address appeared to be known). 21 Accordingly, 22 IT IS ORDERED that Plaintiffs’ Application (Doc. 11) is granted. 23 … 24 …
25 1 Rio was decided in 2002, at a time when email had been gaining widespread popularity for only a few years and was “untrodden ground,” and the Ninth Circuit thus 26 left it “to the discretion of the district court to balance the limitations of email service against its benefits in any particular case.” 284 F.3d at 1017-18. Technical advances 27 over the past two decades have rendered these limitations all but obsolete, and the Court is satisfied that the benefits of email service in this case would far outweigh any 28 conceivable technological limitations. 1 IT IS FURTHER ORDERED that Plaintiffs may serve Pepin via the functioning □□ email address referenced in their Application. 3 Dated this 20th day of September, 2022. 4 5 Lom ee” 6 f t _ Dominic W. Lanza 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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