Twitch Interactive, Inc. v. Justin Johnston

• Court: District Court, N.D. California
• Decided: August 3, 2020
• Docket: 5:16-cv-03404
• Status: Unknown

Opinion

EJ-150 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number and address): FOR COURT USE ONLY Amir Gamliel, Bar No. 268121 Perkins Coie LLP 1888 Century Park East, Suite 1700 Los Angeles, CA 90067 TELEPHONE NO: 310-788-9900 FAXNO (Optional 310-788-3399 E-MAIL ADDRESS (Optiona): agamliel@perkinscoie.com ATTORNEY FOR (Name); Twilch Interactive, Inc. [7] atrorney ror [_¥] supementcrepiror [__] ASSIGNEE OF RECORD SUPERIOR COURT OF CALIFORNIA, COUNTY OF Santa Clara appress: S. First Street maiincaopress. 280 S. First Strect cryanozipcoce: San Jose, CA 95113 BRANCHNAME: U.S, District Court, Northern District (San Jose) PLAINTIFF: Twitch Interactive, Inc. DEFENDANT: Erik Bouchouev et al AMENDED] ExEcuTION (Money Judgment) CASE NUMBER WRIT [_] POSSESSION OF 5 Personal Property BLE 16-cv-03404 OF Cc Real Property [} SALE ‘1. To the Sheriff or Marshal of the County of: NORTHERN DISTRICT OF CALIFORNIA You are directed to enforce the judgment described below with daily interest and your costs as provided by law. 2. To any registered process server: You are authorized to serve this writ only in accord with CCP 609.080 or CCP 715.040. 3. (Name): Twitch Interactive, Inc. is the judgment creditor [_] assignee of record whose address is shown on this form above the courl’s name. 4. Judgment debtor (name and last known adaress): 9. [__] See next page for information on real or personal property to be "Michael Anjomi 1 delivered under a writ of possession or sold under a writ of sale. twitchshop.com@gmail.com; upitpromo@ — 10. [_] This writ is issued on a sister-state judgment. gmail.com; manjomi@gmail.com 11. Total judgment ..... 2.0.2 $ 1,431,063.75 (See attached Order for email service) 12. Costs after judgment (per filed order or | — memo CCP 685090) ............ $0 409 METEORITE CIR, LAS VEGAS, NV 89128-1659 13. Subtotal (add 77 and12)......... $ 1,431,063.75 SEWED 14.Credits .............-.2.-. $90 LOS ANGELES, CA 90066-1419 Subtotal (subtract 14 from ee ee $ 1,431,063.75 | . Interest after judgment (per filed affidavi es CCP 685.050) (not on GC 6103.5 fees)... $ 28,563.26 [¥] Additional judgment debtors on next page : 5. Judgment entered on (date): 17. Fee for issuance of writ.............. $ 0 6/19/2019 48. Total (add 15, 16, and 17)............ $ _1,459,627.01 . 19. Levying officer: 6.[__] Jucigment renewed on (dates): (a) Add daily interest from date of writ wo (at the legal rate on 715) (not on 7. Notice aoe oo this writ sai GC 6103.5 fees) of... .... $ 70.18 tas eee eaquented (see next page) (b) Pay directly to court costs included in | Joint debtor information on next page. 11 and 17 (GC 6103.5, 68511.3; CCP BAD.APMI)) ee eee oO [SEAL] . 20. [__] The amounts called for in items 11-19 are different for each debtor. These amounts are stated for each debtor on Attachment 20. Susan Y. Soong E> Issued on (date): 8/3/2020 Clerk, by Ko Le Bano , Deputy | NOTICE TO PERSON SERVED: SEE NEXT PAGE FOR IMPORTANT INFORMATION. Page 1 of 2 Form Approved for Optional Use WRIT OF EXECUTION Code of Civil Procedure, §§ 699.520, 712.010, svslgalGounet of Caloris Goverment Coxe, § □□□□□

EJ-130 PLAINTIFF: Twitch Interactive, Inc. CASE NUMBER: DEFENDANT: Erik Bouchoueyv et al 16-cv-03404 — Items continued from page 1— 21. Additional judgment debtor (name and last known address): 1 i . . □ Kathy Anj omi Kathy Anjomi twitchshop.co m@gmail enn: 409 METEORITE CIR, LAS VEGAS, NV 89128-1659 . upitpromo@gmail.com; 3165 SAWTELLE BLVD APT 109 vegaskathy@yahoo.com (see attached Order) EOSSNGHEESIG= 20tssm —_] □□□□ 22.[__] Notice of sale has been requested by (name and address): □

1 Lo ——_I 23. __]| Joint debtor was declared bound by the judgment (CCP 989-994) a. on (date): a. on (date): b. name and address of joint debtor: b. name and address of joint debtor: — I □□□

== □□ —___ c. L__] additional costs against certain joint debtors (itemize): (Writ of Possession or Writ of Sale) Judgment was entered for the following: a. (__] Possession of real property: The complaint was filed on (date): (Check (1) or (2)): (1) [__] The Prejudgment Claim of Right to Possession was served in compliance with CCP 415.46. The judgment includes all tenants, subtenants, named claimants, and other occupants of the premises. (2) [__] The Prejudgment Claim of Right to Possession was NOT served in compliance with CCP 415.46. (a)$ was the daily rental value on the date the complaint was filed. (b) The court will hear objections to enforcement of the judgment under CCP 1174.3 on the following dates (specify): b.L__] Possession of personal property. [__] Ifdelivery cannot be had, then for the value (itemize in 9e) specified in the judgment or supplemental order. c.[_] Sale of personal property. d.[_] Sale of real property. e. Description of property:

NOTICE TO PERSON SERVED WRIT OF EXECUTION OR SALE. Your rights and duties are indicated on the accompanying Notice of Levy (Form EJ-150). WRIT OF POSSESSION OF PERSONAL PROPERTY. If the levying officer is not able to take custody of the property, the levying officer will make a demand upon you for the property. If custody is not obtained following demand, the judgment may be enforced as a money judgment for the value of the property specified in the judgment or in a supplemental order. WRIT OF POSSESSION OF REAL PROPERTY. If the premises are not vacated within five days after the date of service on the occupant or, if service is by posting, within five days after service on you, the levying officer will remove the occupants from the real properly and place the judgment creditor in possession of the property. Except for a mobile home, personal property remaining on the premises will be sold or otherwise disposed of in accordance with CCP 1174 unless you or the owner of the property pays the judgment creditor the reasonable cost of storage and takes possession of the personal property not laler than 15 days after the time the judgment creditor takes possession of the premises. & A Claim of Right to Possession form accompanies this writ (unless the Summons was served in compliance with CCP 475.46). SSS ee EJ-130 January 1, 2006) WRIT OF EXECUTION Page 2 of 2

Net A We Ow OO ee be Ne Ae Oe SPE ON ate fo oe OE oe a “uw” _ wit! 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION TWITCH INTERACTIVE, INC., 7 Case No. 16-cv-03404-BLF Plaintiff, V. ORDER GRANTING MOTION TO 9 SERVE DEFENDANTS VIA JUSTIN JOHNSTON, et al., ALTERNATIVE MEANS AND TO 10 EXTEND TIME FOR SERVICE Defendants. 11 a 12 EE epee . . . . g 13 Plaintiff Twitch Interactive, Inc. (“Twitch”) brings this action against Defendants for

Y 14 || allegedly providing bot services that artificially inflate broadcaster popularity statistics in the

= 15 || gaming community, in an attempt to qualify for compensation through Twitch’s program. Compl.

A 16 || 91-2, ECF 1. Twitch has served one but not the remaining defendants. Before the Court is 3 & 2 17 Plaintiff s motion to serve Defendants Alex Renfrow, Erik Bouchouev, Katherine Anjomi, and = - Z 18 || Michael Anjomi via alternative means at their email addresses. Mot., ECF 29. Twitch also seeks 19 || a 120-day extension of time to serve all the unserved defendants. For reasons stated below, the 20 || Court GRANTS Twitch’s motion. 21 I. DEFENDANTS ALEX RENFROW, KATHERINE ANJOMI, AND MICHAEL ANJOMI Based on the exhibits and declarations attached to Twitch’s motion, Twitch has been 23 unsuccessful in its numerous attempts to locate and personally serve Defendants at issue in this 24 motion. For example, for Defendant Renfrow, Twitch reviewed the hosting history of internet 25 domains registered to him and emailed him at numerous email addresses. Mot. 2-3. Twitch also 26 sent the complaint and summons via FTP, and received a confirmation that the FTP notifications 27 were viewed. Jd. at 3; Exs. N-P, AA, BB. Twitch further sent an investigator to locate Defendant 28

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1 Renfrow, who made multiple inquiries as to his whereabouts in California, to no avail. Id. at 4. 2 || As for the Anjomis, Twitch performed the same review and engaged private investigators to 3 || physically locate them. Jd. at 2-3; 5. Twitch obtained confirmation that the Anjomis had 4 downloaded the files via FTP. Exs. CC, DD. Twitch also received a letter from Fred A. Fenster, 5 stating that his firm had “been retained by Michael and Katherine Anjomi . . . to represent them in 6 connection with the above-entitled matter.” Klein Decl. 18; Ex. HH. However, Mr. Fenster 7 || represented that he is not authorized to accept service on the Anjomis’ behalf. Mot. 5; Klein Decl. 8 || 718. 9 Federal Rule of Civil Procedure 4(e)(1) provides the applicable authority for serving an 10 || individual within a judicial district of the United States: Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been 12 filed — may be served ina judicial district of the United States by: (1) following state law for serving a summons in an action brought 13 in courts of general jurisdiction in the state where the district court Ys is located or where service is made... . 20 14 as To that end, Section 413.30 of the California Code of Civil Procedure states (emphasis AS 15 5 added): Q 16 Where no provision is made in this chapter or other law for the 3 5 7 service of summons, the court in which the action is pending may direct that summons be served in a manner which is reasonably - 18 calculated to give actual notice to the party to be served and that proof of such service be made as prescribed by the court. In certain circumstances, service by e-mail is permitted under Rule 4(e)(1) and Section 413.30. For example, in United Health Services, Inc. v. Meyer, a plaintiff offered evidence that it 21 . . tried to serve the defendant in a number of ways, including having a process server find the 22 defendant at her address of record as well as her home address, retaining a private investigator to 23 locate and serve the defendant, mailing a copy of the summons and complaint with a notice of 24 acknowledgment of receipt for the defendant to return, and e-mailing the defendant about the 25 pending action on multiple occasions. None of these attempts were fruitful. No. 12-6197, 2013 26 WL 843698, at *1 (N.D. Cal. Mar. 6, 2013). The Court in Meyer thus granted the plaintiff s 27 motion to serve the defendant by e-mail, in light of other evidence that the defendant had used her 28

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1 e-mail address to send thirty-five messages to the plaintiff, including communications concerning 2 || their litigation. Jd. at *2. 3 Likewise in Aevoe Corporation v. Pace, e-mail service was allowed where the plaintiff had 4 || made “reasonable” attempts to serve the defendant. No.11-3215, 2011 WL 3904133, at *2 (N.D. 5 || Cal. Sept. 6, 2011). These attempts included the plaintiff calling the defendant’s phone numbers, 6 e-mailing the defendant, mailing the complaint to the defendant’s known addresses, attempting to 7 || personally serve the defendant, and retaining a private investigator to track the defendant down. 8 || Id. 9 Based on the showing made by Twitch, the Court finds that Twitch has made substantial 10 || efforts like the plaintiffs in Meyer and Aevoe, in an attempt to personally serve Defendants 11 Renfrow, Katherine Anjomi, and Michael Anjomi. Moreover, like the cases discussed above, the a (212 Court finds that in these circumstances, service by e-mail would be “reasonably calculated to give Z 13 || actual notice” to the defendants. See Cal. Civ. Proc. Code § 413.30. This is in light of Twitch’s 2 14 || multiple emails that were successfully delivered to Defendants’ email addresses, as well as the A 3 15 || confirmation received by Twitch that the Anjomis had downloaded the documents sent by FTP 16 || and that Renfrow had viewed the FTP notifications. Specifically for Defendants Katherine 2 17 || Anjomi and Michael Anjomi, the Court also finds that service on Mr. Fenster is appropriate Z 18 || because Mr. Fenster represents the Anjomis in settlement discussions with Twitch and service on 19 || him would be “reasonably calculated to give actual notice” to the Anjomis. Ex. HH. 20 Il. DEFENDANT ERIK BOUCHOUEV 21 Like the other Defendants, Twitch made substantial efforts in attempting to locate and to 22 serve Defendant Bouchouev. Twitch reviewed Defendant Bouchouev’s internet domains, emailed 23 Bouchouev multiple times, confirmed that the FTP notification was received, and sent an 24 || investigator to make multiple inquiries, including talking to Bouchouev’s mother in the 25 || Netherlands. Mot. 4-6; Pickor Decl. 7-10; Ex. X. Twitch currently has no lead on 26 || Bouchouev’s whereabouts. Klein Decl. { 14. 27 Rule 4(£)(3), governing service in foreign countries, permits service “by other means not 28 || prohibited by international agreement, as the court orders.” Service under Rule 4({)(3) requires a

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1 || plaintiff to show that (1) service is not prohibited by international agreement, and (2) the method 2 || of service is “reasonably calculated, under all the circumstances, to apprise interested parties of the 3 || pendency of the action and afford them an opportunity to present their objections.” Rio 4 || Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016-17 (9th Cir. 2002); D. Light Design, Inc. 5 || v. Boxin Solar Co., No. 13-5988-EMC, 2015 WL 526835, at *1 (N.D. Cal. Feb. 6, 2015). 6 Because no physical address is known, the Hague Convention does not apply and Court is 7 || not aware of an applicable international agreement that would prohibit email service. Hague 8 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or 9 Commercial Matters, art. 1, ratified on April 24, 1967, 20 U.S.T. 361 (“This Convention shall not 10 || apply where the address of the person to be served with the document is not known”); D.Light 11 || Design, 2015 WL 526835, at *2 (noting that the Hague Convention does not apply because the 12 || physical addresses of the defendants are unknown); Goes Int'l, AB v. Dodur Ltd., No. 14-5666, 13 || 2015 WL 1743393, at *3 (N.D. Cal. Apr. 16, 2015) (same). 2 14 The Court additionally finds that in these circumstances, service by e-mail would be A 3 15 || “reasonably calculated to apprise” Bouchouev of this action. This is based on Twitch’s multiple 16 || emails that were successfully delivered to Bouchouev’s email address, as well as the confirmation 5 17 || received by Twitch that Bouchouev had received the FTP notification. Z 18 || 111. EXTENSION OF TIME 19 Twitch also requests an extension of time to serve Defendants Renfrow, the Anjomis, 20 || Pelagatti, Sharaffodin, and Bouchouev. Fed. R. Civ. Proc. 4(m) requires a district court to grant 21 an extension of time if good cause is shown and permits the district court to grant such an 22 || extension even absent good cause. Mann v. Am. Airlines, 324 F.3d 1088, 1090 n.2 (9th Cir. 2003). 23 A defendant’s evasion of service can be “good cause.” Wei v. State of Hawaii, 763 F.2d 370, 371 24 || (9th Cir. 1985). In support of “good cause,” “[a] plaintiff may also [] show the following: (a) the 25 || party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer 26 || no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed. 27 || Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). 28 Even if a good cause finding is not necessary, Twitch has demonstrated good cause here.

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1 Twitch has been diligent in attempting to locate and serve the defendants and a significant amount 2 of time was required for Twitch to perform its investigations. The facts presented to the Court are 3 || consistent with potential evasion of service. There is no evidence that Defendants will suffer 4 || prejudice ifthe Court were to grant this extension because the proceeding is still at its early stage. 5 || Incontrast, dismissing the claims against Defendants would prejudice Twitch. 7 || IV. ORDER 8 For the foregoing reasons, IT IS HEREBY ORDERED that: 9 The motion to serve Defendants Renfrow and Bouchouev the complaint and all future 10 || documents in this action via e-mails is GRANTED. Defendant Alex Renfrow shall be served via 1] email at sexygurl1505@gmail.com, blastgram@gmail.com, and sales@famehomies.com. a Defendant Erik Bouchouev shall be served via email at noxalis@hotmail.com and 13 || twitchviewerbot@gmx.ch. 2 S 14 The motion to serve Defendants Katherine Anjomi and Michael Anjomi the complaint and 3 15 || all future documents in this action via e-mails and via mail service on their counsel is GRANTED. 5 16 || Defendants Michael Anjomi and Katherine Anjomi shall be served via email at 17 || twitchshop.com@gmail.com, upitpromo@gmail.com, vegaskathy@yahoo.com, and - Z 18 || manjomi@gmail.com; and via their counsel, Fred A. Fenster, Esq., using overnight mail. 19 The Court also GRANTS Twitch a 120-day extension to serve Defendants Renfrow, the 20 || Anjomis, Pelagatti, Sharaffodin, and Bouchouev. 21 22 IT IS SO ORDERED. 23 24 || Dated: January 19, 2017 hom flow amars BETH LABSON FREEMAN 26 United States District Judge 27 28