UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 20, 2010
LIBERTY MEDIA HOLDINGS, LLC, A CALIFORNIA CORPORATION, ORDER PLAINTIFF,
JAMES MARCH, INDIVIDUALLY; PERRY SJOGREN, INDIVIDUALLY; DI S.A., A FOREIGN CORPORATION; RYOICHI WATANABE, AN INDIVIDUAL; MARK BURKE, AN INDIVIDUAL; JASON PHILLIPS, AN INDIVIDUAL; DAVID SMITH, AN INDIVIDUAL; ADRUSH MEDIA, A FOREIGN CORPORATION; NAMEVIEW, INC., A FOREIGN CORPROATION; MYCLICKTO.COM, A CALIFORNIA CORPORATION; DIRECT PRIVACY ID 826C9; AND DOES 1-500, DEFENDANTS.
The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the Motion for Alternate Service on Defendants, Ryoichi Watanabe, Jason Phillips, David Smith, Adrush Media, and Direct Privacy ID 826C9*fn1 (ECF No. 9) filed by Plaintiff.
On August 31, 2010, Plaintiff Liberty Media Holdings, LLC, filed the Complaint (ECF No. 1) and on October 18, 2010, Plaintiff filed a First Amended Complaint (ECF No. 6) alleging claims of cyberpiracy, cybersquatting, and trademark infringement against Defendants for their use of website domain names which target Plaintiff's trademark CORBIN FISHER. Plaintiff contends that Defendant Watanabe is "believed to be" a resident of Tokyo who registered an infringing domain name through Godaddy.com; Defendant Phillips is "believed to be" a resident of the UK who registered an infringing domain name through Publicdomainregistry.com; Defendant Smith is a foreign individual who registered infringing domain names through Above.com; and Defendant Adrush Media is a name holder for an infringing domain name registered through Directnic, Ltd. Id. at 4-8.
Plaintiff seeks an order from the Court allowing Defendants to be validly served via email. Plaintiff contends that the locations listed in the domain name information for Defendants Watanabe, Phillips, Smith, and Adrush Media are incorrect and were likely "used in order to evade process." (ECF No. 9-1 at 2). Plaintiff contends that it has diligently attempted to locate the physical addresses of Defendants, but has been unable to do so. Plaintiff contends that it has located the email addresses of Defendants Watanabe, Phillips, Smith, and Adrush Media. Plaintiff contends that, "Plaintiff is unaware of any international agreement with the Netherlands, the United Kingdom, Japan, Grand Cayman, or Australia which prohibits service via email." Id. at 5.
Plaintiff bears the burden of effectuating proof of service. See Butcher's Union Local No. 498, United Food and Commercial Workers v. SDC Inv., Inc., 788 F.2d 535, 538 (9th Cir. 1986). To meet the due process requirement, "the method of service crafted by the district court must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016-17 (9th Cir. 2002) (quotation omitted).
Federal Rule of Civil Procedure 4(f) provides, in pertinent part:
[A]n individual ... may be served at a place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is reasonably calculated to give notice...
(3) by other means not prohibited by international agreement, as the court orders.
Fed. R. Civ. P. 4(f); see also Fed. R. Civ. P. 4(h) (providing that a foreign corporation must be served in a manner prescribed by Rule 4(f)). Service under Rule 4(f)(3) must be (1) directed by the court; (2) not prohibited by international agreement; and (3) comport with constitutional notions of due process. Rio Props., Inc., 284 F.3d at 1014-16.
Plaintiff states that it is "unaware" of any international agreement which prohibit service via email on the Defendants. The Court finds that at ths stage in the proceedings, the record does not adequately demonstrate that service on Defendants via email is not prohibited by international agreement.
CONCLUSION IT IS HEREBY ORDERED that Plaintiff's Motion for Alternate Service (ECF No. 9) is DENIED.
WILLIAM Q. HAYES United StatesDistrict Judge
- 3 - 10cv1809 WQH BLM