Stebbins v. Garcia Baz

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID A. STEBBINS, Case No. 24-cv-00398-LJC

8 Plaintiff, ORDER DENYING SECOND MOTION 9 v. FOR LEAVE TO SERVE BY EMAIL

10 THIAGO CHAGAS GARCIA BAZ, Re: Dkt. No. 14 Defendant. 11

12 I. INTRODUCTION 13 Plaintiff David Stebbins, pro se, seeks leave to conduct service by email on Defendant 14 Thiago Chagas Garcia Baz, who lives in Brazil. The Court has considered the arguments raised in 15 Stebbins’s Motion and finds the matter suitable for resolution without oral argument pursuant to 16 Civil Local Rule 7-9(b). For the reasons discussed below, email service is not permitted under the 17 circumstances of this case. The Court therefore DENIES Plaintiff’s Motion. 18 II. BACKGROUND 19 On January 10, 2024, Stebbins filed a complaint against Garcia Baz for libel, violation of 20 the Digital Millennium Copyright Act (DMCA), and thirteen counts of copyright infringement. 21 Compl. (ECF No. 1). He has since filed his operative First Amended Complaint asserting the 22 same claims and eight additional counts of copyright infringement. 1st Am. Compl. (ECF No. 8). 23 Stebbins was declared a vexatious litigant in a previous case, and is subject to a pre-filing 24 review order that requires him to submit a copy of his complaint for review by the general duty 25 judge before it is accepted for filing. Stebbins v. Google LLC, No. 23-cv-00322-TLT, 2023 WL 26 6139454 (N.D. Cal. Aug. 31, 2023). Stebbins was granted leave to proceed in forma pauperis. 27 ECF No. 13. After review under the vexatious litigant order and 28 U.S.C. § 1915(e)(2)(B), the 1 to the copyright claims. See ECF Nos. 3, 13, 16, 19. 2 On April 10, 2024, Stebbins submitted a first motion for leave to conduct service by email. 3 ECF No. 11. The Court denied Stebbins’s first motion for email service without prejudice. ECF 4 No. 13. 5 On May 3, 2024, Stebbins submitted a second motion for leave to conduct service by 6 email, incorporating the allegations from his first motion. ECF No. 14. Stebbins argues that he is 7 not required to exhaust conventional service methods under Rule 4(f) before the Court can 8 exercise its discretion to authorize email service under Rule 4(f)(3). ECF No. 11. He also 9 contends that Defendant has actual knowledge of the lawsuit, so service by email is appropriate 10 here. Id. 11 III. ANALYSIS 12 A. Legal Standard for Service Under Rule 4(f) 13 This Motion is governed by Federal Rule of Civil Procedure 4(f), which states:

14 Unless federal law provides otherwise, an individual . . . may be served at a place not within any judicial district of the United States: 15 (1) by any internationally agreed means of service that is reasonably 16 calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial 17 Documents;

18 (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that 19 is reasonably calculated to give notice [and is authorized by the foreign country or specified in the rule]; or 20 (3) by other means not prohibited by international agreement, as the 21 court orders. 22 Fed. R. Civ. P. 4(f). 23 B. The Hague Convention Does Not Allow Service by Email in Brazil 24 When the person to be served is located in a foreign country that is a party to the Hague 25 Convention, service under Rule 4(f)(1) is generally required. See Facebook, Inc. v. 9 Xiu Network 26 (Shenzhen) Tech. Co., 480 F. Supp. 3d 977, 986 (N.D. Cal. 2020) (discussing Advisory 27 Committee’s notes on Rule 4(f)). Stebbins argues that he does not need to attempt conventional 1 several which enables service of process on an international defendant.” Rio Props., Inc. v. Rio 2 Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). The Rio Properties case on which Stebbins 3 relies, however, did not discuss the use of Rule 4(f)(3) when the Hague Convention applies. 4 There, the defendant’s country, Costa Rica, was not a party to the Hague Convention. In the 5 present case, Defendant resides in Brazil, which is a signatory country, so the Hague Convention 6 applies and service under Rule 4(f)(1) is required. 7 Brazil and the United States are both signatories to the Hague Convention. 01: Statute of 8 the Hague Conference on Private International Law, Hague Conference on Private International 9 Law, https://www.hcch.net/en/instruments/conventions/status-table/?cid=29 (list of signatories, 10 last updated Mar. 2, 2022). The Hague Convention’s language is mandatory “in all cases, in civil 11 or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for 12 service abroad” and both countries are signatories. Volkswagenwerk Aktiengesellschaft v. Schlunk, 13 486 U.S. 694, 699 (1988) (internal quotation marks omitted). The Hague Convention “specifies 14 certain approved methods of service and ‘pre-empts inconsistent methods of service’ wherever it 15 applies.” Water Splash, Inc. v. Menon, 581 U.S. 271, 273 (2017) (quoting Schlunk, 486 U.S. at 16 699). Service methods authorized by the Hague Convention “includ[e] (a) through a receiving 17 country’s central authority, (b) by diplomatic and consular agents, through consular channels, on 18 judicial officers in the receiving country, or direct service by postal channels, unless the receiving 19 country objects, and (c) by additional methods of service that a signatory country may designate 20 within their borders either unilaterally or through side agreements.” Fellow Indus. v. Turlyn Int’l, 21 Inc., No. 23-cv-02270-LJC, 2023 WL 5239638, at *2 (N.D. Cal. Aug. 15, 2023) (citing Facebook, 22 480 F. Supp. 3d at 980). The Hague Convention requires each signatory country to establish a 23 central authority to receive requests for service and serve documents according to the internal laws 24 of the receiving state. See Schlunk, 486 U.S. at 698-99. Article 10 of the Hague Convention 25 prohibits a signatory country from interfering with “the freedom to send judicial documents by 26 postal channels, directly to persons abroad” (among other methods of service not at issue here) 27 unless the signatory country objects to Article 10. 20 U.S.T. 361, art. 10. 1 Brazil has objected to Article 10 of the Hague Convention, prohibiting service by postal mail. 2 Brazil - Central Authority & practical information, Hague Conference on Private International 3 Law, https://www.hcch.net/en/states/authorities/details3/?aid=1113 (last updated July 22, 2022). 4 Some courts have taken the lack of a similar affirmative objection to email service to mean that 5 service by email is permitted when a country objects to Article 10. See, e.g., WeWork Cos. Inc. v. 6 WePlus (Shanghai) Tech. Co., Ltd., No. 5:18-cv-04543-EJD, 2019 WL 8810350 (N.D. Cal. Jan. 7 10, 2019); GSV Futures LLC v. Casmain L.P., No. 22-cv-05449-LB, 2022 WL 16856361 (N.D. 8 Cal. Nov. 10, 2022). In this Court’s view, however, a service method that is not specifically 9 authorized by the Hague Convention is not allowed merely because a signatory country did not 10 object to it. 11 Article 10 identifies methods of service which are specifically permitted unless a signatory 12 objects. Prem Sales, LLC v. Guangdong Chigo Heating & Ventilation Equip. Co., 494 F. Supp. 13 3d 404, 415–16 (N.D. Tex. 2020). When a service method like email is not identified in the 14 express terms of Article 10, then a signatory country would have no reason to object affirmatively 15 to that means of service. Id. “To infer that the Convention’s silence as to a particular method 16 equates to an implied permission to use virtually any method of service not proscribed by the 17 Convention contravenes [the] purpose” of the Hague Convention to specify “simple and certain 18 methods of service.” Smart Study Co. v. Acuteye-Us, 620 F. Supp. 3d 1382, 1396 (S.D.N.Y. 19 2022), appeal dismissed sub nom. Smart Study Co. v. HAPPY PARTY-001, No. 22-1810-cv, 2023 20 WL 3220461 (2d Cir. May 3, 2023). 21 The Hague Convention’s structure suggests that methods of service not specified by the 22 Hague Convention are prohibited unless countries consent to an alternative method of service. 23 Articles 11 and 19 allow contracting states to make unilateral or bilateral agreements to methods 24 of service not otherwise authorized in the Hague Convention. 20 U.S.T. 361, arts. 11, 19. As 25 noted by a decision from the District of Massachusetts, those “provisions would hardly be 26 necessary if the Convention generally permitted any means of service that are not explicitly 27 authorized or prohibited by its text.” Anova Applied Elecs., Inc. v. Hong King Grp., Ltd., 334 1 country party to the Hague Convention must follow a method of service enumerated either in the 2 Hague Convention, or in a unilateral or bilateral agreement under Articles 11 and 19. See 3 Facebook, 480 F. Supp. 3d at 983 (“[U]nless an exception applies, the Hague Convention- 4 delineated methods of service (along with the methods that countries unilaterally and bilaterally 5 agree to under Articles 11 and 19) are exclusive.”); CRS Recovery, Inc. v. Laxton, No. C 06-7093 6 CW, 2008 WL 11383537, at *1 (N.D. Cal. Jan. 8, 2008) (noting that the Hague Convention “does 7 not permit service in a manner to which a state party has not consented”). 8 This Court has previously denied email service in a similar case involving service on 9 China-based defendants. Fellow Indus., 2023 WL 5239638. Other cases have reached different 10 conclusions. The court in WeWork, for example, relied in part on Rio’s discussion of Rule 4(f)(3) 11 to approve email service on China-based defendants, even though China is a party to the Hague 12 Convention and has objected to service through postal channels. See WeWork, 2019 WL 8810350, 13 at *3 (“Under Rio, service pursuant to Rule 4(f)(3) is ‘neither a last resort nor extraordinary 14 relief.’” (quoting Rio, 284 F.3d at 1015) (internal quotation marks omitted)). Although the court 15 acknowledged that Rio did not implicate alternative service when a receiving country is a 16 signatory to the Hague Convention, id. at *2 n.1, it followed the “weight of authority” from other 17 district court decisions holding that neither the Hague Convention nor an objection under Article 18 10 precluded service by email, id. at *2, without addressing the Supreme Court’s admonition that 19 the Hague Convention “pre-empts inconsistent methods of service,” see Water Splash, 581 U.S. at 20 273 (quoting Schlunk, 486 U.S. at 699).1 21 This Court finds Judge Tse’s detailed analysis of that issue in Facebook more persuasive 22 than the cases like WeWork that have found email service permissible. The Court therefore holds 23 once again that the Hague Convention, and thus also Rule 4(f)(3), prohibits service by email in 24 countries that are party to the Hague Convention, at least where such countries have objected 25 under Article 10 to service through postal channels and there is no agreement or local law 26

27 1 As further support for its conclusion that email service was permissible, the WeWork court held 1 allowing email service under Articles 11 or 19. 2 Here, Brazil and the United States have not bilaterally agreed to permit service by email 3 under Article 11,2 nor does Brazil have internal laws permitting service by email under Article 19. 4 See Brazil - Central Authority & practical information, Hague Conference on Private International 5 Law. Because Brazil is a signatory country and has not consented to email as an alternative 6 method of service, the Court cannot order service by email without an applicable exception. 7 C. Stebbins Has Not Shown That Any Exception Applies 8 Service by means not specified by the Hague Convention may be ordered by the court 9 when the Defendant’s physical address cannot be located, when the foreign country’s Central 10 Authority fails or refuses to execute service, or in case of urgency. Facebook, 480 F. Supp. 3d at 11 986. Stebbins has not asserted any of these exceptions, so service must be executed under the 12 Hague Convention. 13 Here, Stebbins does not argue that Defendant’s address is unknown, nor that Brazil’s 14 central authority has failed or refused to serve the defendant. In fact, Stebbins identified a 15 physical address for Defendant and service has not yet been attempted. ECF Nos. 1, 11. 16 Stebbins also has not shown urgency necessitating court intervention. In WeWork, email 17 service was permitted in part because the plaintiff would have suffered irreparable harm to its 18 reputation and goodwill if service were delayed. WeWork, 2019 WL 8810350, at *3. Here, 19 Defendant’s videos have already been taken down, so there is not harm analogous to the plaintiff’s 20 ongoing irreparable harm in WeWork. ECF No. 11. Although Stebbins argues that service under 21 the Hague Convention would be extremely expensive and slow (ECF No. 11 at 2), that alone is not 22 sufficient for the Court to authorize service by email. 23 Stebbins argues that email service should be authorized because “Defendant already has 24 actual knowledge that this lawsuit is pending . . . . [and a]t this point, service of process is merely 25 a formality.” ECF No. 11 at 3. In support, Stebbins cites two cases permitting email service on 26 2 In addition to the Hague Convention, Brazil and the United States are also parties to the Inter- 27 American Convention on Letters Rogatory and Additional Protocol (IACAP), but that convention 1 defendants who were already aware of pending action. These cases are distinguishable from the 2 || present case because the defendants who were to be served by email were not located in countries 3 where the Hague Convention applied. In United States ex rel. UXB International, Inc., the 4 || defendants to be served by email were located in Afghanistan and Iraq. No. 7:14-cv-00339, 2015 5 WL 4208753, at *3 (W.D. Va. July 8, 2015). Neither country is a signatory to the Hague 6 Convention, so although the court addressed service under Rule 4(f)(3), it had no reason to 7 consider the effect of Hague Convention on that rule. See id. at *1. The other case Stebbins cites 8 did not involve a foreign defendant, so Rule 4(f) was not relevant at all. Miller v. Ceres Unified 9 || Sch. Dist., No. 1:15-CV-0029-BAM, 2016 WL 4702754 (E.D. Cal. Sept. 7, 2016). 10 Because Stebbins has not shown that any recognized exception applies here, service on 11 Defendant must be executed under the Hague Convention. 12 |] Iv. CONCLUSION 5 13 For the reasons above, the Court DENIES Plaintiffs Second Motion for Leave to Serve by 14 || Email. The Court intends to discuss options for service with Stebbins at the July 18, 2024 case 3 15 management conference. a 16 IT IS SO ORDERED. 2 17 |) Dated: July 16, 2024 18 19 Ls, | hart —— AJ. CISMEROS 20 ited States Magistrate Judge 21 22 23 24 25 26 27 28