United States District Court, D. Colorado
ORDER
Scott
T. Varholak United States Magistrate Judge
This
matter is before the Court on Plaintiff Webroot Inc.'s
Motion for Leave to Serve Summons and Complaint Via Email
(the “Motion”) [#13]. For the following reasons,
the Motion is GRANTED in part and
DENIED in part.
This
trademark dispute arises out of Defendants' alleged use
of various domain names, including webrootcom-safe.org, that
infringe on Plaintiff's WEBROOT trademark, and Defendants
offering technical support services in direct competition
with those offered by Plaintiff. [See generally #1]
All three Defendants, Chitranshu Singh, Chandresh Singh, and
Polishsys Technologies, reside in India. [Id. at
¶¶ 10-11; #13 at ¶ 4] Counsel for Plaintiff
has made numerous attempts to correspond with counsel for
Defendants with respect to whether counsel will accept or
waive service on behalf of Defendants. [#13 at ¶ 5]
While Plaintiff has received correspondence from
Defendants' attorneys, those communications have not
indicated whether counsel will accept or waive service on
behalf of Defendants. [Id. at ¶¶ 5, 7]
Plaintiff initiated service of Defendants via The Hague
Convention to the Central Authority in India on August 16,
2018. [Id. at ¶ 8] A package, which included
copies of The Hague Service Request Forms, Summons,
Complaint, and Exhibits for each Defendant, was delivered on
August 20, 2018. [Id.] Despite sending numerous
emails, making several phone calls, and attempting to send a
letter requesting more information via fax, Plaintiff has
been unable to ascertain the status of service of Defendants
through the Central Authority. [Id. at ¶¶
9-10; 12-13] Accordingly, Plaintiff seeks to serve the
summons and Complaint upon Defendants via email. [See
generally #13]
Fed. R.
Civ. P. 4(f) allows service upon an individual in a foreign
country “by any internationally agreed means of service
that is reasonably calculated to give notice, such as those
authorized by The Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents.” Rule 4(f)(3)
also allows an individual in a foreign country to be served
“by other means not prohibited by international
agreement, as the court orders.” To comply with due
process, any means of service must be “reasonably
calculated, under all circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections.” Mullane
v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950).
In
F.T.C. v. Pecon Software Ltd., the United States
District Court for the Southern District of New York
considered the precise issues before the Court here-whether,
under Rule 4(f)(3), service by email of a defendant in India
1) is prohibited by international agreement; 2) comports with
due process, and 3) is warranted. No. 12 Civ. 7186(PAE), 2013
WL 4016272, at *4-9 (S.D.N.Y. Aug. 7, 2013). First, the court
noted that the United States and India are signatories to The
Hague Convention, and that Article 10 of the Convention
“allows for service of process through alternative
means such as ‘postal channels' and ‘judicial
officers,' provided that the destination state does not
object to those means.” Id. at *4 (quoting The
Hague Convention on Service Abroad of Judicial and
Extrajudicial Documents, art. 10, Nov. 15, 1965, 20 UST. 361,
658 U.N.T.S. 163, available at
https://www.hcch.net/en/instruments/conventions/full-text/?cid=17).
While “India has objected to the means listed in
Article 10, ” courts have held that such objection
“is specifically limited to the means of service
enumerated in Article 10.” Id. (collecting
cases). Because service by email is not listed in Article 10,
the court concluded that India had not specifically objected
to service by email and held that such means is not
prohibited by international agreement. Id. at *5;
see also Nat'l Cas. Co. v. W. Express, Inc., No.
CIV-15-1222-R, 2017 WL 2241536, at *3 (W.D. Okla. May 22,
2017) (“[N]umerous courts have held that service by
email does not violate any international agreement, even when
a country objects to Article 10 of The Hague Convention, so
long as the objections of the recipient nation are limited to
those means [of service] enumerated in Article 10.”
(second alteration in original) (quotations omitted)).
Second,
the court considered whether service by email would comport
with due process. In other words, whether service by email
was reasonably calculated to provide defendants with notice
of filings in the case. Pecon Software, 2013 WL
4016272, at *5. The court noted that “[s]ervice by
email alone comports with due process where a plaintiff
demonstrates that the email is likely to reach the
defendant.” Id. (collecting cases). For
example, service by email may be appropriate where
“defendants conduct business extensively” through
their websites and “correspond regularly” via
email, Philip Morris USA Inc. v. Veles Ltd., No. 06
CV 2988(GBD), 2007 WL 725412, at *3 (S.D.N.Y. Mar.12, 2007),
or when plaintiff “has established that the email
accounts [it has] for defendants have been effective means of
communicating with defendants, ” Williams-Sonoma
Inc. v. Friendfinder Inc., No. C 06-06572 JSW, 2007 WL
1140639, at *2 (N.D. Cal. Apr.17, 2007). The court concluded
that service by email was appropriate where plaintiff
“demonstrated a high likelihood that defendants would
receive service” at the email addresses provided,
including providing evidence that the email addresses were
used to set up defendants' Paypal accounts, corporate
registry forms, and for defendants' customer service
correspondence. Pecon Software, 2013 WL 4016272, at
*5-8. Finally, the court concluded that service by email was
warranted because plaintiff had “made ample attempts to
serve defendants by other means, but [was] left with no way
to do so except by the [Indian] Central Authority, which
[had] not shown a disposition to act-or even to respond to
[plaintiff's] queries, ” and the case needed to
move forward. Id. at *9.
Applied
here, the Court agrees that service by email is not
prohibited by international agreement. As to due process,
service by email is reasonably calculated to provide
Defendants with notice of the pendency of the case with
respect to two of the email addresses that Plaintiff proposes
to use. Plaintiff has provided sufficient evidence that
Defendants, or representatives of Defendants, have utilized
and responded to emails sent to the following email
addresses: polishsyscall@gmail.com and
advpiyushshrivastava1989@gmail.com. [See,
e.g., #14-1 at 2; #15-1 at 2, 5-6, 10, 14] With respect
to the third email address,
singhchitranshusingh@gmail.com, Plaintiff notes that
this “email address [is] associated with the WHOIS
record related to the domain name in
dispute”-webrootcom-safe.org. [#13 at 1] However, based
on a review of the International Corporation for Assigned
Names and Numbers (“ICANN”) WHOIS database, there
is no longer any email address associated with the
webrootcom-safe.org domain. See Showing results for:
WEBROOTCOM-SAFE.ORG, ICANN WHOIS,
https://whois.icann.org/en/lookup?name=webrootcom-safe.org
(last visited Oct. 3, 2018). Accordingly, the Court cannot
conclude that service by email to
singhchitranshusingh@gmail.com could reasonably be
expected to give Defendants notice of the instant suit.
Finally, service by email, with respect to the other two
email addresses, is warranted because Plaintiff has made
numerous attempts to serve Defendants by other means and to
request waiver or acceptance of service by Defendants'
counsel. Plaintiff also attempted to serve Defendants through
the Central Authority of India, which has refused to act
upon, or respond to, Plaintiff's requests for service.
Accordingly,
Plaintiff's Motion for Leave to Serve Summons and
Complaint Via Email [#13] is GRANTED in part and
DENIED in part. The Motion is
GRANTED to the extent Plaintiff seeks to
serve Defendants by the following email addresses:
polishsyscall@gmail.com and
advpiyushshrivastava1989@gmail.com. The Motion is
DENIED WITHOUT PREJUDICE to the extent
Plaintiff seeks to serve Defendants by the email address
singhchitranshusingh@gmail.com. Plaintiff may move
to serve Defendants via that email address if Plaintiff can
submit ...