1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 VIRAL DRM LLC, Case No. 24-cv-06854-BLF
8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PLAINTIFF’S MOTION FOR ALTERNATIVE 10 AURELIEN JARDIN, et al., SERVICE 11 Defendants. [Re: ECF 10]
12 Before the Court is Plaintiff Viral DRM, LLC’s (“Plaintiff”) Motion for Alternative Service. 13 14 ECF 10. For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART 15 Plaintiff’s Motion for Alternative Service. 16 I. BACKGROUND 17 18 Plaintiff alleges Defendants Aurelien Jardin and Societe Editrice du Monde (collectively, 19 “Defendants”) operate the YouTube Channel LE HUFFPOST. ECF 1 at ¶ 25. Defendants are alleged 20 to have “copied and downloaded Viral DRM’s copyrighted Works from YouTube.” Id. at ¶ 28. 21 According to Plaintiff, Defendants did so “to advertise, market and promote their YouTube channel, 22 grow their YouTube channel subscriber base, earn money from advertising to their YouTube 23 subscribers, and engage in other money-making business activities using Viral DRM’s copyrighted 24 media content.” Id. at ¶ 30. Viral DRM notified YouTube and Defendants of the allegedly infringing 25 26 actions by Digital Millennium Copyright Act (“DMCA”) notices. Id. at ¶ 46. 27 On November 4, 2024, Plaintiff filed the Motion for Alternative Service. ECF 10. from the Court to serve process on Defendants by email and by website posting pursuant to Federal 1 2 Rule of Civil Procedure 4(f)(3). ECF 10 at 1. Plaintiff also seeks leave to serve via WhatsApp 3 messages as an additional backup. Id. at 8. 4 II. LEGAL STANDARD 5 Under Federal Rule of Civil Procedure 4(f)(3), “[u]nless federal law provides otherwise, an 6 7 individual . . . may be served at a place not within any judicial district of the United States . . . by 8 other means not prohibited by international agreement, as the court orders.” “As [is] obvious from 9 its plain language, service under Rule 4(f)(3) must be (1) directed by the court; and (2) not prohibited 10 by international agreement. No other limitations are evident from the text.” Rio Properties, Inc. v. 11 Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). Indeed, so long as service is court-directed 12 and not prohibited by an international agreement, “service of process under Rule 4(f)(3) may be 13 14 accomplished in contravention of the laws of the foreign country.” Id. 15 Even if facially permitted under Rule 4(f)(3), substitute service “must also comport with 16 constitutional norms of due process.” Id. at 1016. “To meet this requirement, the method of service 17 crafted by the district court must be ‘reasonably calculated, under all the circumstances, to apprise 18 interested parties of the pendency of the action and afford them an opportunity to present their 19 objections.’” Id. at 1016-17 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 20 314 (1950)). 21 22 III. DISCUSSION 23 A. Authorization Under Rule 4(f)(3) 24 The Court finds that the circumstances warrant alternative service. The party 25 26 requesting alternate service must “demonstrate that the facts and circumstances of the present case 27 necessitate[ ] the district court's intervention.” Rio Props., Inc., 284 F.3d at 1016. Here, Defendants Court finds these circumstances make service under Rule 4(f)(3) appropriate. See Rio Props., 284 1 2 F.3d at 1016 (holding district courts have discretion in “determining when the particularities and 3 necessities of a given case require alternate service of process under Rule 4(f)(3)”). 4 Plaintiff seeks to effect service by email, by web posting and by WhatsApp. Those 5 alternative means are not generally prohibited by international agreement. The Hague Service 6 Convention governs because the United States and France are both parties to this multilateral treaty. 7 See ECF 10 at 2; see also Hague Service Convention Status Table, 8 https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Nov. 21, 2024). 9 10 The Hague Convention requires each signatory state to establish a central authority to receive 11 requests for service of documents, and Article 10 permits service through other means if the 12 destination state does not object. Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1508 (2017). France 13 does not expressly objects to Article 10. See Hague Conference Authority: France - Central 14 Authority & Practical Information, https://www.hcch.net/en/states/authorities/details3/?aid=256 15 (last visited Nov. 21, 2024). Accordingly, Plaintiff’s service via email, web posting and WhatsApp 16 is permitted. See Water Splash, 137 S. Ct. at 1508. 17 18 B. Compliance with Due Process 19 Even if facially permitted under Rule 4(f)(3), substituted service “must comport with 20 constitutional norms of due process.” Rio Properties, Inc., 284 F.3d at 1014. Due process does not 21 require actual notice. Jones v. Flowers, 547 U.S. 220, 226 (2006). Instead, the method 22 of service must be “reasonably calculated, under all circumstances, to apprise interested parties of 23 the pendency of the action and afford them an opportunity to present their objection.” Mullane v. 24 25 Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). 26 Plaintiff's service via email and web posting comports with due process. Here, Plaintiff has 27 demonstrated that the email address listed for Defendant Aurelien Jardin– adequate notice of this action and an opportunity to be heard. See Rio Properties, 284 F.3d at 1016- 1 2 17 (finding service via email was “method most likely to reach” defendant and concluding district 3 court did not abuse discretion in authorizing service via email). Plaintiff states that Defendants are 4 required to maintain accurate email addresses to “communicate with Google, receive notice of 5 DMCA takedowns, submit counternotices, receive payment advices, and communicate with 6 YouTube concerning their YouTube channel.” ECF 10 at 4. Plaintiff has presented evidence that 7 Defendants have recently used the email address to submit counter notifications to YouTube with 8 respect to the allegedly infringing actions. See ECF 1-3 at 6. 9 10 Plaintiff also seeks to serve Defendants by posting copies of the complaint and other legal 11 documents related to this case on Plaintiff’s website located at www.sriplaw.com/notice. ECF 10 at 12 6. Plaintiff’s attorney, Mr. Matthew Rollin, declared under the penalty of perjury that Plaintiff would 13 post all court papers on its website and email its website address to Defendants so that “Defendants 14 can access all electronic filings.” ECF 10-1, Rollin Decl., at ¶ 7. The Court finds that Plaintiff’s 15 proposed method of web posting is “reasonably calculated under all the circumstances, to apprise 16 interested parties of the pendency of the action and afford them an opportunity to present their 17 18 objections.” Nat’l Ass’n for Stock Car Auto Racing, Inc. v. Does, 584 F. Supp. 2d 824, 826 19 (W.D.N.C. 2008) (internal citation omitted). Thus, Plaintiff has presented evidence demonstrating 20 service by email and by web posting is likely to reach Defendants and comply with due process. See 21 Rio Properties, 284 F.3d at 1016-17.
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 VIRAL DRM LLC, Case No. 24-cv-06854-BLF
8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PLAINTIFF’S MOTION FOR ALTERNATIVE 10 AURELIEN JARDIN, et al., SERVICE 11 Defendants. [Re: ECF 10]
12 Before the Court is Plaintiff Viral DRM, LLC’s (“Plaintiff”) Motion for Alternative Service. 13 14 ECF 10. For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART 15 Plaintiff’s Motion for Alternative Service. 16 I. BACKGROUND 17 18 Plaintiff alleges Defendants Aurelien Jardin and Societe Editrice du Monde (collectively, 19 “Defendants”) operate the YouTube Channel LE HUFFPOST. ECF 1 at ¶ 25. Defendants are alleged 20 to have “copied and downloaded Viral DRM’s copyrighted Works from YouTube.” Id. at ¶ 28. 21 According to Plaintiff, Defendants did so “to advertise, market and promote their YouTube channel, 22 grow their YouTube channel subscriber base, earn money from advertising to their YouTube 23 subscribers, and engage in other money-making business activities using Viral DRM’s copyrighted 24 media content.” Id. at ¶ 30. Viral DRM notified YouTube and Defendants of the allegedly infringing 25 26 actions by Digital Millennium Copyright Act (“DMCA”) notices. Id. at ¶ 46. 27 On November 4, 2024, Plaintiff filed the Motion for Alternative Service. ECF 10. from the Court to serve process on Defendants by email and by website posting pursuant to Federal 1 2 Rule of Civil Procedure 4(f)(3). ECF 10 at 1. Plaintiff also seeks leave to serve via WhatsApp 3 messages as an additional backup. Id. at 8. 4 II. LEGAL STANDARD 5 Under Federal Rule of Civil Procedure 4(f)(3), “[u]nless federal law provides otherwise, an 6 7 individual . . . may be served at a place not within any judicial district of the United States . . . by 8 other means not prohibited by international agreement, as the court orders.” “As [is] obvious from 9 its plain language, service under Rule 4(f)(3) must be (1) directed by the court; and (2) not prohibited 10 by international agreement. No other limitations are evident from the text.” Rio Properties, Inc. v. 11 Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). Indeed, so long as service is court-directed 12 and not prohibited by an international agreement, “service of process under Rule 4(f)(3) may be 13 14 accomplished in contravention of the laws of the foreign country.” Id. 15 Even if facially permitted under Rule 4(f)(3), substitute service “must also comport with 16 constitutional norms of due process.” Id. at 1016. “To meet this requirement, the method of service 17 crafted by the district court must be ‘reasonably calculated, under all the circumstances, to apprise 18 interested parties of the pendency of the action and afford them an opportunity to present their 19 objections.’” Id. at 1016-17 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 20 314 (1950)). 21 22 III. DISCUSSION 23 A. Authorization Under Rule 4(f)(3) 24 The Court finds that the circumstances warrant alternative service. The party 25 26 requesting alternate service must “demonstrate that the facts and circumstances of the present case 27 necessitate[ ] the district court's intervention.” Rio Props., Inc., 284 F.3d at 1016. Here, Defendants Court finds these circumstances make service under Rule 4(f)(3) appropriate. See Rio Props., 284 1 2 F.3d at 1016 (holding district courts have discretion in “determining when the particularities and 3 necessities of a given case require alternate service of process under Rule 4(f)(3)”). 4 Plaintiff seeks to effect service by email, by web posting and by WhatsApp. Those 5 alternative means are not generally prohibited by international agreement. The Hague Service 6 Convention governs because the United States and France are both parties to this multilateral treaty. 7 See ECF 10 at 2; see also Hague Service Convention Status Table, 8 https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Nov. 21, 2024). 9 10 The Hague Convention requires each signatory state to establish a central authority to receive 11 requests for service of documents, and Article 10 permits service through other means if the 12 destination state does not object. Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1508 (2017). France 13 does not expressly objects to Article 10. See Hague Conference Authority: France - Central 14 Authority & Practical Information, https://www.hcch.net/en/states/authorities/details3/?aid=256 15 (last visited Nov. 21, 2024). Accordingly, Plaintiff’s service via email, web posting and WhatsApp 16 is permitted. See Water Splash, 137 S. Ct. at 1508. 17 18 B. Compliance with Due Process 19 Even if facially permitted under Rule 4(f)(3), substituted service “must comport with 20 constitutional norms of due process.” Rio Properties, Inc., 284 F.3d at 1014. Due process does not 21 require actual notice. Jones v. Flowers, 547 U.S. 220, 226 (2006). Instead, the method 22 of service must be “reasonably calculated, under all circumstances, to apprise interested parties of 23 the pendency of the action and afford them an opportunity to present their objection.” Mullane v. 24 25 Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). 26 Plaintiff's service via email and web posting comports with due process. Here, Plaintiff has 27 demonstrated that the email address listed for Defendant Aurelien Jardin– adequate notice of this action and an opportunity to be heard. See Rio Properties, 284 F.3d at 1016- 1 2 17 (finding service via email was “method most likely to reach” defendant and concluding district 3 court did not abuse discretion in authorizing service via email). Plaintiff states that Defendants are 4 required to maintain accurate email addresses to “communicate with Google, receive notice of 5 DMCA takedowns, submit counternotices, receive payment advices, and communicate with 6 YouTube concerning their YouTube channel.” ECF 10 at 4. Plaintiff has presented evidence that 7 Defendants have recently used the email address to submit counter notifications to YouTube with 8 respect to the allegedly infringing actions. See ECF 1-3 at 6. 9 10 Plaintiff also seeks to serve Defendants by posting copies of the complaint and other legal 11 documents related to this case on Plaintiff’s website located at www.sriplaw.com/notice. ECF 10 at 12 6. Plaintiff’s attorney, Mr. Matthew Rollin, declared under the penalty of perjury that Plaintiff would 13 post all court papers on its website and email its website address to Defendants so that “Defendants 14 can access all electronic filings.” ECF 10-1, Rollin Decl., at ¶ 7. The Court finds that Plaintiff’s 15 proposed method of web posting is “reasonably calculated under all the circumstances, to apprise 16 interested parties of the pendency of the action and afford them an opportunity to present their 17 18 objections.” Nat’l Ass’n for Stock Car Auto Racing, Inc. v. Does, 584 F. Supp. 2d 824, 826 19 (W.D.N.C. 2008) (internal citation omitted). Thus, Plaintiff has presented evidence demonstrating 20 service by email and by web posting is likely to reach Defendants and comply with due process. See 21 Rio Properties, 284 F.3d at 1016-17. 22 The Court finds, however, Plaintiff’s proposed service via WhatsApp message does not 23 comport with due process. In the Motion for Alternative Service, Plaintiff explains that “Defendant 24 25 might have a WhatsApp account connected to the phone number provided by Defendant to Plaintiff 26 in the counternotices.” ECF 10 at 8 (emphasis added). Plaintiff has not presented any evidence 27 demonstrating that Defendants have a WhatsApp account, or Defendants could be reached via 1 speculation is not enough to prove Defendants can be “likely” reached via this means. See Rio 2 || Properties, 284 F.3d at 1016-17. Because Plaintiff has not made an adequate showing service by 3 || WhatsApp comports with due process, the Court DENIES Plaintiff's request to include WhatsApp 4 as an additional backup to email service WITHOUT PREJUDICE. 5 6 IV. ORDER 7 For the foregoing reasons, IT IS HEREBY ORDERED that: 8 Plaintiff's Motion for Alternative Service is GRANTED to the extent it seeks to serve 9 Defendants by email and by web posting, and DENIED WITHOUT PREJUDICE to the extent it 10 seeks to include WhatsApp as a backup means of service. Plaintiff may serve the Complaint and 11 Summons via email at ajardin@ vmmagazines.com and publication on plaintiff's counsel’s website 12 B at http://www.sriplaw.com/notice. Plaintiff shall file proof of service within 10 days of email
14 || Service. Service will be deemed effective as of the date of filing of the proof of service.
IT IS SO ORDERED. = 17 18 Dated: November 25, 2024
20 TH LABSON FREEMAN United States District Judge 21 22 23 24 25 26 27 28