1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VIRAL DRM LLC, Case No. 3:23-cv-05045-JSC
8 Plaintiff, ORDER RE: PLAINTIFF’S MOTION 9 v. FOR ALERNATIVE SERVICE
10 FRANCISCO MORANE FUENTES, Re: Dkt. No. 47 Defendant. 11
12 Plaintiff Viral DRM LLC syndicates and licenses video content of extreme weather events 13 from around the world. Defendant, a citizen of Spain, allegedly downloaded and copied Plaintiff’s 14 copyrighted materials from YouTube, and then re-uploaded infringing versions of Plaintiff’s 15 copyrighted media content to his YouTube channel(s). Plaintiff seeks leave to serve Defendant 16 via email and posting on a designated website. (Dkt. No. 47.) After carefully considering 17 Plaintiff’s motion and the relevant legal authority, the Court concludes oral argument is 18 unnecessary, see Civ. L.R. 7-1(b), and DENIES WITHOUT PREJUDICE the motion for 19 alternative service. 20 BACKGROUND 21 Viral DRM alleges Francisco Morante Fuentes operates the YouTube Channel 22 FULLTOPS. (Dkt. No. 42 at ¶ 25.) Defendant is alleged to have “downloaded Viral DRM’s 23 Works, [] edited the Works, removed Viral DRM’s copyright management information, and then 24 uploaded infringing versions of Viral DRM’s Works to YouTube.” (Id. at ¶ 27.) Defendant did so 25 “to advertise, market and promote their YouTube channel, grow their YouTube channel subscriber 26 base, earn money from advertising to their YouTube subscribers, and engage in other money- 27 1 DRM notified YouTube and Defendant of the allegedly infringing behavior by filing DMCA take- 2 down notices, but Defendant responded with false and misleading information. (Id. at ¶¶ 44-45.) 3 After filing this action, Plaintiff was granted leave to subpoena Google to obtain 4 information sufficient to identify the individual operating Defendant’s YouTube channel. (Dkt. 5 No. 20.) Plaintiff now seeks leave to serve Defendant through alternative email service to the 6 email address Google provided in response to the subpoena as well as by website posting. (Dkt. 7 No. 47.) Plaintiff contends “allowing e-mail service in the present case is appropriate and 8 comports with constitutional notions of due process, particularly given Fuentes’s decision to 9 conduct his illegal businesses using the Internet and utilizing e-mail as a primary means of 10 communication.” (Dkt. No. 47 at 11.) 11 DISCUSSION 12 Federal Rule of Civil Procedure 4(f) provides the applicable authority for serving an 13 individual in a foreign country. Under Rule 4(f)(3), courts can order service through a variety of 14 methods, “including publication, ordinary mail, mail to the defendant’s last known address, 15 delivery to the defendant’s attorney, telex, and most recently, email[,]” so long as the method of 16 service is not prohibited by an international agreement. Rio Props., Inc. v. Rio Intern. Interlink, 17 284 F.3d 1007, 1016 (9th Cir. 2002) (citation omitted). “However, the fact that an alternative 18 method of service is not prohibited by international agreement does not mean that the plaintiff is 19 entitled to use such a method under Rule 4(f)(3).” Keck v. Alibaba.com, Inc., 330 F.R.D. 255, 20 257–58 (N.D. Cal. 2018). It is within a court’s “sound discretion” to determine whether “the 21 particularities and necessities of a given case require alternate service of process under Rule 22 4(f)(3).” Rio Properties, 284 F.3d at 1016. 23 To comport with due process, alternate service of process must be “reasonably calculated 24 to apprise interested parties of the pendency of the action and afford them an opportunity to 25 present their objections.” Id. at 1016–17 (citation omitted). Service by email may be proper when 26 (1) international agreement does not prohibit service by email, and (2) service by email is 27 reasonably calculated to provide actual notice to the defendant. See D.Light Design, Inc. v. Boxin 1 cases). 2 International agreement does not prohibit service by email here. The Hague Service 3 Convention governs because the United States and Spain are both parties to this multilateral treaty. 4 See Hague Service Convention Status Table, 5 https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Apr. 11, 2024). 6 The Convention’s language is mandatory “in all cases, in civil or commercial matters, where there 7 is occasion to transmit a judicial or extrajudicial document for service abroad.” Volkswagenwerk v. 8 Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) (internal quotation marks omitted). The 9 Convention authorizes service in several ways, including (a) through a receiving country’s central 10 authority, (b) by diplomatic and consular agents, through consular channels, on judicial officers in 11 the receiving country, or direct service by postal channels, unless the receiving country objects, 12 and (c) by additional methods of service that a signatory country may designate within their 13 borders either unilaterally or through side agreements. Facebook, Inc. v. 9 Xiu Network 14 (Shenzhen) Technology Co., Ltd., 480 F. Supp. 3d 977, 980 (2020). “Nothing in the Hague 15 Convention itself prohibits alternative service by email, when such service is directed by a court.” 16 See Google LLC v. Does 1-3, No. 23-CV-05823-VKD, 2023 WL 8851619, at *2 (N.D. Cal. Dec. 17 21, 2023) (collecting cases). 18 Plaintiff, however, has not made an adequate showing service by email comports with due 19 process. As a threshold matter, Plaintiff has not identified the email address(es) it intends to use to 20 serve Defendant. Plaintiff indicates it plans to use the email address Google provided in response 21 to a subpoena, but it has not attached a copy of Google’s response. See, e.g., Google, 2023 WL 22 8851619, at *2 (relying on Google subscriber records submitted with the motion for alternative 23 service demonstrating the accounts were active and recently accessed to demonstrate service by 24 email was “likely to reach defendants and is reasonably calculated to provide them actual notice of 25 this action.”). 26 Nor has Plaintiff provided evidence the email address Defendant provided Google is likely 27 to be legitimate. Plaintiff contends Defendant must provide Google “a valid electronic means to 1 counternotices, receive payment advices, and communicate with YouTube concerning his 2 YouTube channel,” but Plaintiff alleged in the complaint the information in Defendant’s 3 counternotice was fraudulent. (Compare Dkt. No. 47 at 7 with Dkt. No. 42 at ¶¶ 45-46.) The 4 counternotice indicates FULLTOPS is registered to Francisco Morante Fuentes of Alicante, Spain 5 and uses the email address morantelogan87@gmail.com. (Dkt. No. 42-3 at 19.) Plaintiff does not 6 explain what portion of this information it believes is inaccurate or fraudulent and whether Google 7 provided a different address for Mr. Fuentes in response to the subpoena. 8 Nor has Plaintiff provided other evidence demonstrating service by email is likely to reach 9 Defendant. For example, Plaintiff has not provided evidence it attempted to communicate with 10 Defendant at the morantelogan87@gmail.com email address or another email address to ensure 11 the address is legitimate. See, e.g., F.T.C. v. Pecon Software Ltd., No. 12 CIV. 7186 PAE, 2013 12 WL 4016272, at *5 (S.D.N.Y. Aug. 7, 2013) (“Service by email alone comports with due process 13 where a plaintiff demonstrates that the email is likely to reach the defendant.”); Hillbroom v. 14 Lujan, 2010 WL 11515374, at *2 (C.D. Cal.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VIRAL DRM LLC, Case No. 3:23-cv-05045-JSC
8 Plaintiff, ORDER RE: PLAINTIFF’S MOTION 9 v. FOR ALERNATIVE SERVICE
10 FRANCISCO MORANE FUENTES, Re: Dkt. No. 47 Defendant. 11
12 Plaintiff Viral DRM LLC syndicates and licenses video content of extreme weather events 13 from around the world. Defendant, a citizen of Spain, allegedly downloaded and copied Plaintiff’s 14 copyrighted materials from YouTube, and then re-uploaded infringing versions of Plaintiff’s 15 copyrighted media content to his YouTube channel(s). Plaintiff seeks leave to serve Defendant 16 via email and posting on a designated website. (Dkt. No. 47.) After carefully considering 17 Plaintiff’s motion and the relevant legal authority, the Court concludes oral argument is 18 unnecessary, see Civ. L.R. 7-1(b), and DENIES WITHOUT PREJUDICE the motion for 19 alternative service. 20 BACKGROUND 21 Viral DRM alleges Francisco Morante Fuentes operates the YouTube Channel 22 FULLTOPS. (Dkt. No. 42 at ¶ 25.) Defendant is alleged to have “downloaded Viral DRM’s 23 Works, [] edited the Works, removed Viral DRM’s copyright management information, and then 24 uploaded infringing versions of Viral DRM’s Works to YouTube.” (Id. at ¶ 27.) Defendant did so 25 “to advertise, market and promote their YouTube channel, grow their YouTube channel subscriber 26 base, earn money from advertising to their YouTube subscribers, and engage in other money- 27 1 DRM notified YouTube and Defendant of the allegedly infringing behavior by filing DMCA take- 2 down notices, but Defendant responded with false and misleading information. (Id. at ¶¶ 44-45.) 3 After filing this action, Plaintiff was granted leave to subpoena Google to obtain 4 information sufficient to identify the individual operating Defendant’s YouTube channel. (Dkt. 5 No. 20.) Plaintiff now seeks leave to serve Defendant through alternative email service to the 6 email address Google provided in response to the subpoena as well as by website posting. (Dkt. 7 No. 47.) Plaintiff contends “allowing e-mail service in the present case is appropriate and 8 comports with constitutional notions of due process, particularly given Fuentes’s decision to 9 conduct his illegal businesses using the Internet and utilizing e-mail as a primary means of 10 communication.” (Dkt. No. 47 at 11.) 11 DISCUSSION 12 Federal Rule of Civil Procedure 4(f) provides the applicable authority for serving an 13 individual in a foreign country. Under Rule 4(f)(3), courts can order service through a variety of 14 methods, “including publication, ordinary mail, mail to the defendant’s last known address, 15 delivery to the defendant’s attorney, telex, and most recently, email[,]” so long as the method of 16 service is not prohibited by an international agreement. Rio Props., Inc. v. Rio Intern. Interlink, 17 284 F.3d 1007, 1016 (9th Cir. 2002) (citation omitted). “However, the fact that an alternative 18 method of service is not prohibited by international agreement does not mean that the plaintiff is 19 entitled to use such a method under Rule 4(f)(3).” Keck v. Alibaba.com, Inc., 330 F.R.D. 255, 20 257–58 (N.D. Cal. 2018). It is within a court’s “sound discretion” to determine whether “the 21 particularities and necessities of a given case require alternate service of process under Rule 22 4(f)(3).” Rio Properties, 284 F.3d at 1016. 23 To comport with due process, alternate service of process must be “reasonably calculated 24 to apprise interested parties of the pendency of the action and afford them an opportunity to 25 present their objections.” Id. at 1016–17 (citation omitted). Service by email may be proper when 26 (1) international agreement does not prohibit service by email, and (2) service by email is 27 reasonably calculated to provide actual notice to the defendant. See D.Light Design, Inc. v. Boxin 1 cases). 2 International agreement does not prohibit service by email here. The Hague Service 3 Convention governs because the United States and Spain are both parties to this multilateral treaty. 4 See Hague Service Convention Status Table, 5 https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Apr. 11, 2024). 6 The Convention’s language is mandatory “in all cases, in civil or commercial matters, where there 7 is occasion to transmit a judicial or extrajudicial document for service abroad.” Volkswagenwerk v. 8 Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) (internal quotation marks omitted). The 9 Convention authorizes service in several ways, including (a) through a receiving country’s central 10 authority, (b) by diplomatic and consular agents, through consular channels, on judicial officers in 11 the receiving country, or direct service by postal channels, unless the receiving country objects, 12 and (c) by additional methods of service that a signatory country may designate within their 13 borders either unilaterally or through side agreements. Facebook, Inc. v. 9 Xiu Network 14 (Shenzhen) Technology Co., Ltd., 480 F. Supp. 3d 977, 980 (2020). “Nothing in the Hague 15 Convention itself prohibits alternative service by email, when such service is directed by a court.” 16 See Google LLC v. Does 1-3, No. 23-CV-05823-VKD, 2023 WL 8851619, at *2 (N.D. Cal. Dec. 17 21, 2023) (collecting cases). 18 Plaintiff, however, has not made an adequate showing service by email comports with due 19 process. As a threshold matter, Plaintiff has not identified the email address(es) it intends to use to 20 serve Defendant. Plaintiff indicates it plans to use the email address Google provided in response 21 to a subpoena, but it has not attached a copy of Google’s response. See, e.g., Google, 2023 WL 22 8851619, at *2 (relying on Google subscriber records submitted with the motion for alternative 23 service demonstrating the accounts were active and recently accessed to demonstrate service by 24 email was “likely to reach defendants and is reasonably calculated to provide them actual notice of 25 this action.”). 26 Nor has Plaintiff provided evidence the email address Defendant provided Google is likely 27 to be legitimate. Plaintiff contends Defendant must provide Google “a valid electronic means to 1 counternotices, receive payment advices, and communicate with YouTube concerning his 2 YouTube channel,” but Plaintiff alleged in the complaint the information in Defendant’s 3 counternotice was fraudulent. (Compare Dkt. No. 47 at 7 with Dkt. No. 42 at ¶¶ 45-46.) The 4 counternotice indicates FULLTOPS is registered to Francisco Morante Fuentes of Alicante, Spain 5 and uses the email address morantelogan87@gmail.com. (Dkt. No. 42-3 at 19.) Plaintiff does not 6 explain what portion of this information it believes is inaccurate or fraudulent and whether Google 7 provided a different address for Mr. Fuentes in response to the subpoena. 8 Nor has Plaintiff provided other evidence demonstrating service by email is likely to reach 9 Defendant. For example, Plaintiff has not provided evidence it attempted to communicate with 10 Defendant at the morantelogan87@gmail.com email address or another email address to ensure 11 the address is legitimate. See, e.g., F.T.C. v. Pecon Software Ltd., No. 12 CIV. 7186 PAE, 2013 12 WL 4016272, at *5 (S.D.N.Y. Aug. 7, 2013) (“Service by email alone comports with due process 13 where a plaintiff demonstrates that the email is likely to reach the defendant.”); Hillbroom v. 14 Lujan, 2010 WL 11515374, at *2 (C.D. Cal. May 3, 2010) (permitting service of foreign 15 individual by email where individual used the subject email address to communicate with 16 counsel); Goes Int’l, AB v. Dodur Ltd., No. 14-CV-5666, 2015 WL 1743393, at *3 (N.D. Cal. Apr. 17 16, 2015) (same). While Plaintiff has previously indicated it was concerned Defendant might 18 change ownership of the YouTube channel if Plaintiff provided notice of this action, the motion 19 for alternative service does not discuss this issue. (Dkt. No. 17-2 at ¶¶ 9-10.) 20 Finally, while the motion repeatedly references Defendant’s email address in the singular, 21 it also states “[b]ased upon plaintiff’s investigation, Fuentes has multiple forms of electronic 22 means of contact, demonstrating that this means of contact is not just effective, but the most 23 reliable means of communicating with Fuentes, and consequently, the most reliable means of 24 providing Fuentes with notice of this action.” (Dkt. No. 79 at 9 (citing Rollin Decl. ¶¶ 7-8).) Mr. 25 Rollin’s declaration, however, only refers to Defendant’s “email address.” It is unclear if this is a 26 typographical error or if Mr. Funetes has multiple email addresses at which Plaintiff should 27 attempt service. Likewise, Mr. Rollin’s declaration includes reference to a different defendant 1 || 94.5.) 2 In sum, Plaintiff's motion for alternative service fails to satisfy Rule 4(f) and constitutional 3 due process. 4 CONCLUSION 5 For the reasons stated above, the Court DENIES WITHOUT PREJUDICE Plaintiffs 6 || motion to serve Defendant by alternative means. 7 This Order disposes of Docket No. 42. 8 IT IS SO ORDERED. 9 || Dated: April 11, 2024 10 11 ne JACQUELINE SCOTT CORLEY 12 nited States District Judge
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