Maddry v. Luoxue

Opinion

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 DANIEL M. MADDRY, Case No. 5:25-cv-02449-BLF

6 Plaintiff, ORDER DENYING PLAINTIFF’S 7 v. MOTION FOR ALTERNATIVE SERVICE 8 LUOXUE, et al., [Re: Dkt. No. 3] 9 Defendants.

10 11 Plaintiff Daniel Maddry (“Plaintiff” or “Maddry”) brings suit against Defendants Luoxue, 12 Zhang Zhenkai, and Guoyanquing, each alleged to be “an individual or business entity operating 13 out of” China. Dkt. No. 1 (“Compl.”) ¶¶ 1, 7–9. Before the Court is Maddry’s Motion for 14 Alternative Service. Dkt. No. 3 (“Mot.”). Maddry requests a court order to effectuate service via 15 email and “[b]y notifying Amazon.com, Inc., Walmart.com, and eBay.com’s legal departments of 16 this lawsuit and requesting that they provide a copy of the Summons, Complaint, and supporting 17 documents to Defendants via their internal communication systems.” Id. at 1, 3. For the 18 following reasons, Maddry’s motion is DENIED. 19 I. BACKGROUND 20 Plaintiff, an individual residing in California, alleges that he is the sole owner of a card 21 game entitled “Discernment.” See Compl. ¶¶ 1, 6. Supported by a Kickstarter campaign, 22 Discernment was created on June 1, 2023 and published on June 1, 2024. Id. ¶ 12 & Exs. 1, 2. 23 The game includes 500 cards, each with unique content authored by Plaintiff, and is distributed in 24 a “distinctive black and blue pixelated box.” Compl. ¶ 12. On February 23, 2025, however, 25 Plaintiff “identified counterfeit versions of Discernment being sold on Amazon.” Id. ¶ 17. 26 Plaintiff determined that other counterfeit listings appeared on Walmart.com and eBay.com as 27 well. Id. ¶ 16 & Exs. 6, 7. On February 26, 2025 and February 28, 2025, Plaintiff emailed Cease 1 listings to Amazon, which temporarily removed the listings” and “informed Plaintiff that the 2 listings would be reinstated unless proof of a filed lawsuit is provided.” Id. ¶ 20. Thereafter, 3 Plaintiff filed the present lawsuit, which asserts one cause of action for Copyright Infringement 4 under 17 U.S.C. §§ 106, 501. Compl. at 5. He simultaneously sought a temporary restraining 5 order (“TRO”), Dkt. No. 2, which the Court denied on March 14, 2025, Dkt. No. 12. 6 In the present motion, Plaintiff states that he “has diligently attempted to identify and 7 locate Defendants.” Mot. ¶ 3. He determined that Defendants were “sellers of counterfeit copies” 8 of Plaintiff’s game and “[a]ttempted to locate valid business addresses for each Defendant.” Id. 9 He submitted his Cease and Desist letters to Defendants via email, but Defendants have not 10 responded. Id. 11 II. LEGAL STANDARD 12 Plaintiff Maddry’s motion is governed by Federal Rule of Civil Procedure 4(f), which 13 addresses “Serving an Individual in a Foreign Country”: Unless federal law provides otherwise, an individual—other than a minor, an 14 incompetent person, or a person whose waiver has been filed—may be served at a place 15 not within any judicial district of the United States: (1) by any internationally agreed means of service that is reasonably calculated to 16 give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; 17 (2) if there is no internationally agreed means, or if an international agreement 18 allows but does not specify other means, by a method that is reasonably calculated to give notice: 19 (A) as prescribed by the foreign country’s law for service in that 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 to the individual personally; or 23 (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or 24 (3) by other means not prohibited by international agreement, as the court orders. 25 Fed. R. Civ. P. 4(f). Plaintiff specifically invokes Rule 4(f)(3). Mot. at 2. Pursuant to Rule 26 4(f)(3), alternate service must be (1) directed by the court and (2) not prohibited by international 27 agreement. See Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). 1 mail to the defendant’s last known address, delivery to the defendant’s attorney, telex, and . . . 2 email.” Id. at 1015–16. More recently, “courts in this district have authorized service of process 3 by social media.” Fabian v. LeMahieu, No. 19-cv-00054, 2020 WL 3402800, at *3 (N.D. Cal. 4 June 19, 2020) (citing St. Francis Assisi v. Kuwait Fin. House, No. 16-cv-3240, 2016 WL 5 5725002, at *2 (N.D. Cal. Sep. 30, 2016) (Twitter); UBS Fin. Servs. v. Berger, No. 13-cv-03770, 6 2014 WL 12643321, at *5 (N.D. Cal. Apr. 24, 2014) (LinkedIn)). 7 III. DISCUSSION 8 Maddry seeks to effectuate service via email and “[b]y notifying Amazon.com, Inc., 9 Walmart.com, and eBay.com’s legal departments of this lawsuit and requesting that they provide a 10 copy of the Summons, Complaint, and supporting documents to Defendants via their internal 11 communication systems.” Mot. at 1, 3. He argues that these forms of service are reasonably 12 calculated to provide notice because “Defendants’ primary business activities are conducted 13 online, making service via email and platform notification the most practical and effective method 14 of ensuring notice.” Id. at 2–3. He also argues that Rule 4(f)(3) “permits alternative service even 15 where the Hague Convention applies.” Id. at 3 (citing Volkswagenwerk Aktiengesellschaft v. 16 Schlunk, 486 U.S. 694, 707 (1988)). 17 The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or 18 Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 (1969) (“Hague Service 19 Convention”), is a multilateral treaty aiming to “simplify, standardize, and generally improve the 20 process of serving documents abroad.” Water Splash, Inc. v. Menon, 581 U.S. 271, 273 (2017). It 21 therefore “specifies certain approved methods of service and ‘pre-empts inconsistent methods of 22 service’ wherever it applies.” Id. (quoting Volkswagenwerk, 486 U.S. at 699). The Hague Service 23 Convention governs Plaintiff’s request, because China is a signatory to that treaty. 24 “District courts in the Ninth Circuit are split on the issue of whether defendants may be 25 served outside the United States via email, when the foreign country where service will occur is a 26 signatory to the Hague Service Convention and has not affirmatively agreed to allow email service 27 under that Convention.” Cadence Design Sys., Inc. v. Fenda USA Inc., 734 F. Supp. 3d 960, 963 1 Supp. 3d 977, 984 & n.5 (N.D. Cal. 2020)). As explained in Cadence Design Systems, the 2 language of the Convention lays out “three principal forms of service”: (1) service through “the 3 Central Authority” of the state in which service is to be effectuated, Hague Service Convention, 4 Arts. 2–7; (2) service through various enumerated alternative methods, such as “through . . . 5 diplomatic or consular agents,” id., Art. 8, or—in the absence of objection from the destination 6 state—through “postal channels, . . . judicial officers, officials, or other competent persons of the 7 State of destination,” id., Arts. 9–10; and (3) service through “methods to which the receiving 8 country has affirmatively agreed or authorized,” 734 F. Supp. 3d at 964 (citing Hague Service 9 Convention, Arts. 11, 19). Because “[e]mail is not a listed alternative method, and China has not 10 affirmatively agreed to service via email,” some courts in this district have determined that service 11 via email to defendants in China is “prohibited by international agreement.” Id. at 963–65; accord 12 Xiu Network, 480 F. Supp. 3d at 987. 13 This Court finds the reasoning in Cadence Design Systems and Xiu Network persuasive. 14 Those courts analyzed the text and structure of both the Convention and Rule 4, as well as relevant 15 precedent, and ultimately concluded that “the Convention delineates the exclusive means by which 16 service of documents may occur in the signatory countries,” and those procedures, when available, 17 are “mandatory if documents must be transmitted abroad to effect service.” Cadence Design Sys., 18 734 F. Supp. 3d at 964; accord Xiu Network, 480 F. Supp. 3d at 986. If signatory countries too 19 freely “authorize alternative methods of service that [are] unfamiliar to foreign defendants,” a real 20 risk of defendants facing default judgments in foreign jurisdictions “without having had an 21 opportunity to defend the claim” arises. See Cadence Design Sys., 734 F. Supp. 3d at 964–65 22 (quoting DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3d Cir. 1981)). This result 23 would undermine the purposes of the Convention, which include “ensur[ing] that judicial and 24 extrajudicial documents to be served abroad shall be brought to the notice of the addressee in 25 sufficient time” and “improv[ing] the organisation of mutual judicial assistance for that purpose.” 26 Hague Service Convention, Preamble. 27 Because the Court concludes that service by email on a defendant in China is “prohibited 1 exception before the Court will consider permitting that form of service. For example, alternative 2 || service may be permitted “if the receiving country refuses to complete service for impermissible 3 reasons” or if “the receiving central authority does not return the required certificate showing it 4 || has completed service for more than six months.” Cadence Design Sys., 734 F. Supp. 3d at 965 5 (citing Hague Service Convention, Arts. 13, 15). However, Plaintiff has not submitted any 6 || evidence indicating that he attempted to effectuate service under the Hague Convention, so this 7 exception is inapplicable. 8 It may be the case that the “exception for when the defendant’s address is unknown” 1s 9 applicable here. Xiu Network, 480 F. Supp. 3d at 987 (citing Hague Service Convention, Art. I). 10 || However, Plaintiff has not expressly asserted that Defendants’ addresses are unknown, nor has he 11 submitted “evidence to support a showing of reasonable diligence in attempting to discover [their] 12 addresses.” Id. at 987 n.7 (internal alterations omitted) (quoting Indagro, S.A. v. Nilva, No. 07-cv- 5 13 || 03742, 2014 WL 1515587, at *4 (D.N.J. Apr. 17, 2014)). 14 In light of the foregoing, the Court finds that permitting email service at this time is 3 15 || premature and DENIES Plaintiff's motion without prejudice to renewal of the motion at a later a 16 || date. The Court does “sympathize with [Plaintiff] over the difficulties of attempting to track down 3 17 foreign defendants who may be trying to evade service,” Xiu Network, 480 F. Supp. 3d at 987, and 18 acknowledges that this denial will result in delay. On the other hand, the Supreme Court has 19 || pointed out that “parties that comply with the Convention ultimately may find it easier to enforce 20 || their judgments abroad.” Volkswagenwerk, 486 U.S. at 706. 21 || IV. ORDER 22 For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs Motion for 23 Alternative Service is DENIED WITHOUT PREJUDICE to Plaintiff renewing his motion at a 24 || later time. 25 IT IS SO ORDERED. 26 Dated: March 18, 2025

TH LABSON FREEMAN 28 United States District Judge