Shelton v. News Nation Network Pvt. Ltd.

Opinion

BRYCE SHELTON, Case No. 25-cv-01546-AMO

Plaintiff, ORDER DENYING EX PARTE v. APPLICATION FOR ORDER AUTHORIZING ALTERNATIVE Defendant. Re: Dkt. No. 14

Before the Court is Plaintiff Bryce Shelton’s ex parte application (“Appl.”) for the Court to authorize alternative service via email on Defendant News Nation Network Pvt. Ltd. (“News Nation”), which Shelton alleges is located in India. Having read his papers and carefully considered his arguments and the relevant legal authority, the Court hereby DENIES without prejudice the application for alternative service, for the following reasons. Shelton alleges that he is an extreme weather videographer who captured footage of a tornado in Lincoln, Nebraska in 2024 (the “Subject Video”), and properly registered the footage with the United States Copyright Office. Compl. (ECF 3) ¶ 11. Shelton alleges that News Nation used the Subject Video in news segments on its website and YouTube channel without Shelton’s permission, infringing on Shelton’s copyright over the Subject Video. Compl. ¶¶ 15-22. Shelton further alleges that News Nation modified the Subject Video, created unlawful derivative works, and removed any attribution to Shelton. Id. After discovering his works on News Nation’s website and YouTube channel, Shelton filed a copyright removal request with YouTube, asking that the video with the allegedly Nation then filed a counter-notice, claiming its use of the copyrighted material constituted fair use and listing a contact email, phone number, and physical address at the end. Id. at 3. Shelton asserts that email is the form of communication News Nation lists on its Digital Millennium Copyright Act (“DMCA”) counter-notice for YouTube, and that he attempted to reach News Nation via both the email listed therein and News Nation’s grievance complaints email, attaching copies of the complaint, summons, and a waiver of summons form. Appl. (ECF 14) at 2. Shelton emailed News Nation on May 15, 2025, and he filed this Application on the same day. Id. News Nation has not responded to either of Shelton’s emails. Shelton seeks an order allowing for service by email as an alternative means of service pursuant to Federal Rule of Civil Procedure 4(f)(3). Rule 4(f)(3) empowers trial courts to authorize service through a variety of methods, including email. Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). To comport with due process, the requested method of service must be “reasonably calculated, under all circumstances, to apprise interested parties” of the action against them, and “afford them an opportunity to present their objections.” Id. at 1017-18 (quotation marks and citation omitted). A party seeking this authorization need not exhaust all service alternatives but must still show that the “facts and circumstances” of the case require the district court’s intervention. Id. at 1016. Alternative service under Rule 4(f)(3) is “merely one means among several” for effecting service on an international defendant – but the advisory committee notes for the Federal Civil Rules of Procedure also state that a “special method of service,” such as email, may be most appropriate “in cases of urgency.” Id. at 1015 (internal quotes omitted). To that end, service under Federal Rule of Civil Procedure 4(f)(3) must be (1) “not prohibited by international agreement” and (2) “directed by the court.” Rio, 284 F.3d at 1014. Here, email service on News Nation is not prohibited by international agreement. India is a signatory to the Hague Convention, and while it objected to Article 10, which prohibits service by postal channels, that objection does not prohibit email service. See Appl. at 4 (citing Microsoft Oct. 11, 2017) (“China’s objection to Article 10 does not prohibit the email service the Court ordered in the instant case.”); Facebook, Inc. v. Banana Ads, LLC, 2012 WL 1038752, at *2 (N.D. Cal. Mar. 27, 2012); Williams-Sonoma Inc. v. Friendfinder Inc., No. C06-06572, 2007 WL 1140639, at *2 (N.D. Cal. Apr. 17, 2007) (allowing email service of defendants located in countries that objected to service via postal channels)). Thus, the first Rio element is satisfied. Next, the Court need consider whether email service is reasonably calculated to appraise News Nation of the action against it. See Rio, 284 F.3d at 1017-18. Shelton argues that News Nation runs an online business and lists email as its preferred method of communication in its DMCA counter-notice on YouTube, inviting communication via email. Appl. (ECF 14) at 5. Shelton contends that News Nation’s reliance on email creates a circumstance analogous to other cases where courts authorized email service on foreign defendants because email service here reasonably apprises News Nation of the lawsuit against it. Id. In support of his argument, Shelton cites to Rio, where the court authorized email service to the defendant after the defendant “[strove] to evade service of process” by declining service through its international courier and its United States-based attorney. Rio, 284 F.3d at 1016. In Rio, the Ninth Circuit reasoned that email service was proper because the defendant had listed no street address, office, or door – it had “structured its business such that it could be contacted only via its email address.” Id. at 1017-18 (emphasis in original). The Ninth Circuit also addressed email’s downside – parties cannot verify receipt of an email, unlike certified mail and other traditional methods of service. Id. at 1018. Shelton also directs the Court’s attention to Facebook, Inc. v. Banana Ads, LLC, 2012 WL 1038752 (N.D. Cal. Mar. 27, 2012), where the defendants could not be served because they falsified their physical addresses. Banana Ads, 2012 WL 1038752 at *2. Facebook’s demonstration that those physical addresses “proved unsuitable for service” was a significant part of the court’s analysis in granting Facebook its application to effect service via email. Id. Here, in contrast to Rio, News Nation has a street address and phone number, which are listed in one of the exhibits Shelton attached to his application – there is no indication that News Nation is unreachable except via email. Doniger Decl., Ex. 4 (ECF 14-5) at 3. Shelton’s counsel (internal quotation marks omitted). That these emails did not bounce back as undeliverable is insufficient for the Court to conclude that email is reasonably calculated to provide News Nation notice that comports with due process. The lack of a bounce back simply establishes that the email addresses are valid, not that the inboxes are actively monitored or that anyone is communicating from these emails. Relatedly, Shelton falls short of establishing that the particularities and necessities of the case demand authorization of email service when there appear to be other valid avenues for service. There is no indication that News Nation falsified any information regarding its physical address or other contact information, or that News Nation has attempted to evade service by more traditional channels. Cf. Banana Ads, 2012 WL 1038752 at *2. Indeed, though other means are available, Shelton has not attempted to communicate in any manner other than through the two emails he sent. See ECF 1 and 14. Moreover, Shelton also filed this ex parte motion the same day he sent the emails – he did not permit even one day to pass for News Nation to respond. Shelton further argues that service via email is appropriate because the alternative form of service, proceeding through the Hague Convention and India’s Central Authority, could take months or years. Appl. (ECF 14) at 2. However, Shelton has not clearly demonstrated any of the irreparable harm or urgency presented in other cases where courts permitted service by email instead of going through traditional Hague Convention channels. See, e.g., WeWork Companies Inc. v. WePlus (Shanghai) Tech. Co., Ltd., No. 18-cv-04543, 2019 WL 8810350, *1 (N.D. Cal. Jan. 10, 2019) (finding that plaintiff would suffer “irreparable injury to its reputation and goodwill” because of the confusion between its mark and that of the infringing mark the defendant was using if the plaintiff were compelled to go through the time-consuming traditional means of service through the Hague Convention); Richmond Technologies, Inc. v. Aumfech Bus. Solutions, No. 11-cv-02460, 2011 WL 2607158, *13 (N.D. Cal. Jul. 1, 2011) (permitting service via email where plaintiff evidenced it faced immediate harm to its goodwill and reputation absent swift preliminary relief). Here, the alleged infringement started over a year ago, and Shelton alleges no facts suggesting urgency or irreparable harm that demands swift action. See Compl. 1 In sum, Shelton has not established that the circumstances of this case support service by 2 email to addresses that could be inactive, unmonitored, or otherwise unlikely to apprise the 3 Defendant of the action against it. Indeed, the lack of a response thus far harms Shelton’s 4 argument that formal service to these emails is “reasonably calculated to apprise defendants” of 5 this lawsuit because there is no evidence of activity from these emails. Rio, 284 F.3d at 1016. 6 Additionally, without allegations of immediate, irreparable harm, and because Shelton brings no 7 other evidence of his efforts to reach the Defendant beyond two emails to two email addresses, 8 this Court is not inclined to authorize alternative service to the emails Shelton lists in his 9 application. 10 11. CONCLUSION 11 For the foregoing reasons, the Court DENIES without prejudice Shelton’s application to 12 serve News Nation via alternative means.

IT IS SO ORDERED. 3 15 Dated: August 15, 2025 16 ) (| ike = 17 ARACELI MARTINEZ-OLGUIN Z 18 United States District Judge 19 20 21 22 23 24 25 26 27 28