Reintegrative Therapy Association, Inc. et al v. Kinitz et al, No. 3:2021cv01297 - Document 13 (S.D. Cal. 2021)

Court Description: ORDER denying in part 6 Motion for an Order authorizing service of the summons and complaint on Defendant David J. Kinitz by E-mail an/or mail. Signed by Judge Roger T. Benitez on 11/04/2021. (jpp)

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Reintegrative Therapy Association, Inc. et al v. Kinitz et al Doc. 13 Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.259 Page 1 of 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 REINTEGRATIVE THERAPY ASSOCIATION, INC., a California corporation; and DR. JOSEPH NICOLOSI JR., an individual, Plaintiffs, 14 15 v. 16 DAVID J. KINITZ, an individual; and TRAVIS SALWAY, an individual, 17 Defendants. 18 19 I. ) ) ) ) ) ) ) ) ) ) ) Case No.: 3:21-cv-1297-BEN-BLM ORDER DENYING-IN-PART MOTION FOR AN ORDER AUTHORIZING SERVICE OF THE SUMMONS AND COMPLAINT ON DEFENDANT DAVID J. KINITZ BY E-MAIL AND/OR MAIL [ECF No. 6] INTRODUCTION 20 Plaintiffs REINTEGRATIVE THERAPY ASSOCIATION, INC., a California 21 Corporation; and DR. JOSEPH NICOLOSI JR., an individual (collectively, “Plaintiffs”) 22 bring this action against Defendants DAVID J. KINITZ, an individual (“Mr. Kinitz”), and 23 TRAVIS SALWAY, an individual (“Dr. Salway”) (collectively, “Defendants”) for 24 defamation. See ECF No. 1. Before the Court is the Motion for an Order Authorizing 25 Service of the Summons and Complaint Defendant on David J. Kinitz by e-mail and/or 26 mail (the “Motion”). ECF No. 6. After considering the papers submitted, supporting 27 documentation, and applicable law, the Court DENIES-IN-PART the Motion. 28 /// -13:21-cv-1297-BEN-BLM Dockets.Justia.com Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.260 Page 2 of 16 1 II. BACKGROUND 2 Plaintiffs allege that on January 8, 2021, Defendants published an article containing 3 false and defamatory statements mischaracterizing their Reintegrative Therapy protocol 4 as a form of conversion therapy. ECF No. 1 at ¶¶ 7, 13, 20, 38. 5 On July 20, 2021, Plaintiffs filed this lawsuit, alleging claims for relief for (1) 6 defamation (libel per se) and (2) injunctive relief. ECF No. 1. On August 24, 2021, 7 Plaintiff served Travis Salway with the Complaint. ECF No. 3; ECF No. 4 at 23-25. On 8 October 14, 2021, Defendant Dr. Salway timely appeared, filling a Special Motion to 9 Strike and Motion to Dismiss the Complaint. ECF No. 9. Among other things, Dr. 10 Salways seeks to dismiss the Complaint for lack of personal jurisdiction1. Id. However, 11 to date, Plaintiffs have not served Mr. Kinitz. Because Plaintiffs believe Mr. Kinitz is a 12 foreigner residing in Canada, on October 8, 2021, Plaintiffs filed the instant Motion 13 seeking to serve Mr. Kintiz by e-mail. ECF No. 6. 14 III. LEGAL STANDARD 15 Rule 4 of the Federal Rules of Civil Procedure (“Rule 4”) governs service of 16 process. Under Rule 4, “[u]nless federal law provides otherwise, an individual … may 17 be served at a place not within any judicial district of the United States” in any of the 18 following methods: (1) 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; 19 20 21 (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: 22 23 24 (A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction; 25 26 27 28 Based upon the Court’s conclusion in this order, it would appear service on Dr. Salway was invalid. However, by appearing to contest personal jurisdiction rather than service of the summons and complaint, Dr. Salway appears to have waived this argument. 1 -23:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.261 Page 3 of 16 1 2 3 4 5 6 7 8 (B) as the foreign authority directs in response to a letter rogatory or letter of request; or (C) unless prohibited by the foreign country’s law, by: (i) delivering a copy of the summons and of the complaint to the individual personally; or (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or (3) by other means not prohibited by international agreement, as the court orders. 9 FED. R. CIV. P. 4(f). “Subsection (1) implements the [Hague] Convention; subsection (2) 10 identifies methods for serving persons in countries that are not members of the 11 Convention; and subsection (3) ‘serves as a safety valve for unanticipated situations,’, 12 including when an exception to the Convention applies.” Facebook, Inc. v. 9 Xiu Network 13 (Shenzhen) Tech. Co., 480 F. Supp. 3d 977, 981 (N.D. Cal. Aug. 19, 2020) (quoting 4B 14 Charles A. Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice and 15 Procedure § 1133 (4th ed. April 2020 update)). 16 The Hague Service Convention on the Service Abroad of Judicial and Extrajudicial 17 Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 18 6638 (the “Hague Convention”), is an internationally agreed means of service expressly 19 incorporated into and referenced by Rule 4. It is “a multilateral treaty intended ‘to provide 20 a simpler way to serve process abroad, to assure that defendants sued in foreign 21 jurisdictions ... receive actual and timely notice of suit, and to facilitate proof of service 22 abroad.’” Granger v. Gary E. Nesbitt & Polaris Transport Carriers, Inc., No. CV 4:21- 23 11066-TSH, 2021 WL 4658658, at *3 (D. Mass. Oct. 7, 2021) (citing Volkswagenwerk 24 Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988)). Thus, under Rule 4, a party 25 may serve a foreign defendant residing in a country that is a member of the Hague 26 Convention by a means of service authorized by the Hague Convention, FED. R. CIV. P. 27 4(f)(1), or “by other means not prohibited by international agreement” but only pursuant 28 to a court order, FED. R. CIV. P. 4(f)(3) (emphasis added). -33:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.262 Page 4 of 16 1 IV. DISCUSSION 2 Plaintiffs seek an order “authorizing alternate service of process of the Summons, 3 Complaint, and related documents on Mr. Kinitz by e-mail and mail, as well as an 4 extension of 90 days-time from the date of entry of any order authorizing service to effect 5 such service.” 6 “Defendants Dr. Salway and Mr. Kinitz are believed to be foreign individuals residing in 7 Canada.” Mot. at 2:6. Motion, ECF No. 6-1 (“Mot.”) at 6:2-4. They indicate that both 8 The United States and Canada are both parties to the Hague Convention. Water 9 Splash, Inc. v. Menon, 137 S. Ct. 1504, 1507 (2017); see also TracFone Wireless, Inc. v. 10 Bitton, 278 F.R.D. 687, 689 (S.D. Fla. 2012) (“Both the United States and Canada are 11 signatories to the Convention, and it applies to all civil cases where there is an occasion 12 to transmit a judicial document for service abroad.”) (citing Volkswagenwerk, 486 U.S. at 13 705). Thus, “[s]ervice of process to foreign defendants in Canada,” like Defendants here, 14 “must comply with the Hague Convention.’” Granger, 2021 WL 4658658, at *3. 15 Plaintiffs state that “[a]fter filing the Complaint, [they] conducted investigative 16 efforts into the current physical addresses and phone numbers of Defendants Dr. Salway 17 and Mr. Kinitz for purposes of effecting service of process of the Complaint and related 18 documents by personal service.” Mot. at 2:7-9. They “provided this information to an 19 international service of process agency based in Miami, FL in the United States and 20 instructed the process service agency to attempt service.” Id. at 2:9-11. 21 On August 24, 2021, this agency effected service of process on Dr. Salway. Mot. 22 at 2:12-13. However, that same day, the process server unsuccessfully attempted service 23 of process on Mr. Kinitz at the only known address for Mr. Kinitz, which “is the address 24 located at the Dalla Lana School of Public Health, where Mr. Kinitz is believed to be a 25 Ph.D. candidate and researcher.” Mot. at 2:16-18; see also Exhibit 1 to Declaration of 26 Robert Weisenburger, Return of Non-Service of Karen Sorrenti, ECF No. 6-2 at 5. The 27 process server, Karen Sorrenti, stated under penalty of perjury that on August 24, 2021, at 28 2:25 p.m., she attempted service at the Dalla Lana School of Public Health, University of -43:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.263 Page 5 of 16 1 Toronto, 155 College Street, RM 540, Toronto, Ontario, but the doors were locked, no 2 security was present, and there was no answer when she called the number on the door for 3 deliveries. Id. She also stated that she called a different number, for a Canadian shipment 4 company, but the male who answered stated no one was present in the building as it was 5 in lockdown. Id. The individual also stated he did not know who Mr. Kinitz is. Id. The 6 process server left a notice on the door, but never heard back from anyone. Id. 7 Plaintiffs’ counsel explains they attempted to serve Mr. Kinitz at the 8 aforementioned address because it was the only address they could locate for him. 9 Declaration of Robert Weisenburger in Support of Motion, ECF No. 6-2 (“Weisenburger 10 Decl.”) at 2-3, ¶¶ 4-5. He states that even after conducting “additional searches, including 11 conducting subscription only public records searches for an alternate physical address,” 12 no additional addresses could be located. Id. at 2-3, ¶ 5; see also Mot. at 4:27-5:1. 13 Assuming personal service is authorized under the Hague Convention, Plaintiffs’ 14 use of the address appears reasonable given Mr. Kinitz’s publicly available Google 15 Scholar profile shows that he is a doctoral candidate at the Dalla Lana School of Public 16 Health. 17 https://scholar.google.com/citations?user=fttMsBkAA AAJ&hl=en&oi=ao (evidencing 18 Mr. Kinitz’s publicly available Google Scholar profile). Further, it appears that further 19 attempts to serve Mr. Kinitz at this location would be unlikely to prove successful given 20 Plaintiffs have provided the Court with a print-out from the Dalla Lana School of Public 21 Health, advising that subject to “very few exceptions,” “the building is closed to all 22 faculty, staff and students” and “courses will be delivered remotely.” Exhibit 2 to 23 Weisenburger Decl., ECF No. 6-2 at 7-9; see also https://www.dlsph.utoronto.ca/covid- 24 19-frequently-asked-questions/; Mot. at 2:18-22, 4:25-27. Plaintiffs also state that they 25 have “contacted the Dalla Lana School of Public Health by telephone and received 26 confirmation by way of automated voice message that the campus is shut down with no 27 indication as to when it will re-open.” Mot. at 2:22-24. Thus, the Court finds that 28 assuming it was authorized by the Hague Convention, Plaintiff’s attempt at service at this Exhibit 3 to Weisenburger Decl., ECF No. 6-2 at 12; see also -53:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.264 Page 6 of 16 1 address was reasonable. However, having failed to personally serve Mr. Kinitz, Plaintiffs 2 now seek to serve him by mail and/or e-mail. The Court must first analyze whether service 3 by e-mail is authorized under Rule 4 and/or the Hague Convention. Then, it must analyze 4 whether service at the proposed e-mail address is likely to provide notice of this lawsuit. 5 Plaintiffs argue that the rules of court of all Canadian provinces authorize 6 alternative methods for service upon a party, which is referred to as substitutional service. 7 Mot. at 5:7-12. Plaintiff directs the Court to Knott v. Sutherland, A.J. No. 1539 (2009), 8 where the Alberta Court of Queen’s Bench ordered substituted service by sending an 9 amended statement of claim to the profile of the defendant on Facebook, together with a 10 local daily newspaper publication of a notice of the action, and sending a copy of the 11 action to the defendant’s last known employer’s human resources department. Mot. at 12 5:14-17. They argue that “[a] similar substituted service is appropriate to employ in this 13 present action.” Mot. at 5:17-18. However, as outlined below, the Court finds that 14 Plaintiffs’ attempts to serve Mr. Kinitz are deficient and do not warrant e-mail service at 15 this point given Plaintiffs have not first attempted service on Canada’s Central Authority. 16 In Water Splash, the United States Supreme Court expressly held that the Hague 17 Convention does not prohibit service by mail, and thus, remanded for further proceedings 18 to determine whether the Canadian defendant could be served by mail. 137 S. Ct. at 1513. 19 However, in doing so, the Court also held that “the Hague Service Convention specifies 20 certain approved methods of service and ‘pre-empts inconsistent methods of service’ 21 wherever it applies.” Id. at 1507 (quoting Volkswagenwerk, 486 U.S. at 699). Thus, Water 22 Splash makes clear that service by mail is indeed permissible for the Canadian defendant 23 in this case under both Rule 4 and the Hague Convention. 137 S. Ct. at 1513. It also 24 makes clear that where it applies, the Hague Convention is mandatory. Id. at 1507. Water 25 Splash leaves the issue of whether e-mail service is authorized unaddressed. 26 Executed in the 1960s, the Hague Convention does not reference service by e-mail. 27 Facebook, 480 F. Supp. 3d at 980. However, under the Hague Convention, a party may 28 serve documents in several ways that would not require a court order under Rule 4(f)(1) -63:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.265 Page 7 of 16 1 because they are authorized by international agreement. 2 “First, an applicant can send a request for service to a receiving country’s central 3 authority, an entity that every signatory to the Convention must establish.” Facebook, 480 4 F. Supp. 3d at 980. “The primary innovation of the Convention is that it requires each 5 state to establish a central authority to receive requests for service of documents from 6 other countries.” Volkswagenwerk, 486 U.S. at 698-99 (citing Hague Convention, 20 7 U.S.T. 362, T.I.A.S. 6638, Art. 2); see also Brockmeyer v. May, 383 F.3d 798, 804 (9th 8 Cir. 2004) (noting that “[t]he Hague Convention affirmatively authorizes service of 9 process through the Central Authority of a receiving state,” and “Rule 4(f)(1), by 10 incorporating the Convention, in turn affirmatively authorizes use of a Central 11 Authority”). 12 including a Central Authority for Quebec.” TracFone, 278 F.R.D. at 690 . “The central 13 authority must attempt to serve the defendant by a method that is compatible with the 14 receiving country’s domestic laws, and then provide the applicant with a certificate either 15 confirming that service was successful or listing the reasons that prevented service.” 16 Facebook, 480 F. Supp. 3d at 980 (citing Hague Convention, Arts. 2-7). “Canada has established a Central Authority for each of its provinces, 17 Second, the Hague Convention authorizes “alternative methods of service unless 18 the receiving country objects.” Facebook, 480 F. Supp. 3d at 980. Such “methods include 19 service by diplomatic and consular agents, service through consular channels, service on 20 judicial officers in the receiving country, and direct service ‘by postal channels.’” Id. 21 (quoting the Hague Convention, Arts. 8-10); see also TracFone, 278 F.R.D. at 690 (noting 22 that “Canada does not object to Article 10(a) of the Convention regarding the use of postal 23 channels”). This confirms the Water Splash Court’s holding that service by mail, as 24 “direct service ‘by postal channels,’” is authorized where the receiving state does not 25 object and such service is authorized under otherwise-applicable law. 137 S.Ct. at 1513. 26 To B 27 Third, the Hague Convention allows “countries to designate additional methods of 28 service within their borders, either unilaterally or through side agreements with each -73:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.266 Page 8 of 16 1 other.” Id. at 980-81 (citing Hague Convention, Arts. 11, 19). Plaintiffs do not direct the 2 Court to any authority addressing alternative methods. 3 Fourth, the Hague Convention does not allow “the receiving country to refuse 4 service ‘on the ground that, under its internal law, it claims exclusive jurisdiction over the 5 subject-matter of the action or that its internal law would not permit the action upon which 6 the application is based.’” Id. at 981 (citing Hague Convention, Art. 13). If a receiving 7 country fails to abide by this rule, “special forms of service” may be authorized. Id. (citing 8 Rule 4 Notes, subdivision (f)(3)). Here, there is no indication that Canada would refuse 9 service by claiming exclusive jurisdiction, so this method of service appears inapplicable. 10 Finally, “if the plaintiff attempts to serve the defendant through a central authority 11 and no certificate of any kind is received, the plaintiff can move for default judgment six 12 months after initiating service.” 13 “Alternatively[,] in this scenario, the presiding judge ‘may direct a special method of 14 service.’” Id. (citing Rule 4 Notes, subdivision (f)(3)). Here, it appears that Plaintiff seeks 15 “a special method of service” by serving Mr. Kinitz via e-mail. However, it also appears 16 that under the Hague Convention, Plaintiffs must attempt to serve Mr. Kinitz through 17 Canada’s central authority first. See, e.g., Brockmeyer, 383 F.3d at 801 (“The primary 18 means by which service is accomplished under the Convention is through a receiving 19 country’s ‘Central Authority.’”). Id. (citing Hague Convention, Art. 15 ¶ 2). 20 For example, in Brockmeyer, the Ninth Circuit held that Rule 4(f)(1) did “not 21 provide a basis for service” on an English defendant because it was “undisputed that [the 22 plaintiff] did not use either the Central Authority under the Hague Convention or any other 23 internationally agreed means for accomplishing service.” 383 F.3d at 804. Thus, even 24 though the court held “that the Hague Convention allows service of process by 25 international mail,” it found service by mail ineffective in that case because the plaintiffs 26 “simply dropped the complaint and summons in a mailbox in Los Angeles, to be delivered 27 by ordinary, international first class mail.” Id. at 808-09. However, “[t]here is no 28 affirmative authorization for such service in Rule 4(f).” Id. -83:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.267 Page 9 of 16 1 Similarly, in ePlus Tech., Inc. v. Aboud, 155 F. Supp. 2d 692, 701 (E.D. Va. 2001), 2 the Court dismissed a case for lack of proper service of process pursuant to Rule 12(b)(5) 3 of the federal rules of Civil Procedure, where the plaintiff, rather than “avail[ing] itself of 4 the Convention’s principal option to serve process through Canada’s or Quebec’s Central 5 Authorities[,] . . . chose to employ a private server to deliver the documents to [the 6 defendant]’s spouse and to post the documents at [the other defendant]’s residence.” Id. at 7 697. The plaintiff argued these alternative service methods were appropriate because “the 8 contracting State [i.e., Canada] ‘permits’ all alternative service methods not explicitly 9 prohibited by that State, whereas defendants claim a contracting State only ‘permits’ the 10 service methods it specifically adopts.” Id. However, the court concluded that the 11 plaintiff’s reading of Article 19 of the Hague Convention “would lead to an anomalous 12 result.” Id. at 700. In rejecting the alternative methods of service used, the court stated 13 that “[t]he lesson of the result reached here is that a party seeking to serve process in foreign 14 countries that are signatories to the Hague Convention should make use of the Central 15 Authority designated by that country.” Id. at 701. It noted that “[t]his is typically the 16 simplest and most secure mode of service in these circumstances.” Id. Thus, in ePlus, 17 “[t]o effect proper service, plaintiff needed to do no more than to request 18 the Central Authority in Quebec to effect service pursuant to the Convention.” 19 “The Central Authority in Quebec would then have employed a sheriff or bailiff to perfect 20 service in accordance with Quebec law.” Id. Id. 21 Thus, the Court orders that Plaintiffs must first request service through Canada’s 22 central authority. See Brockmeyer, 383 F.3d at 804; see also Automattic Inc. v. Steiner, 23 82 F. Supp. 3d 1011, 1021 (N.D. Cal. 2015) (“The Court finds that Plaintiffs adequately 24 served the Defendant through use of a designated Central Authority under article 18 of the 25 Hague Convention in compliance with Rule 4(f)(1) of the Federal Rules of Civil 26 Procedure.”); TracFone, 278 F.R.D. at 690 (finding “that directing the Clerk’s Office to 27 request that the Quebec Central Authority effect service of on Defendant Bitton pursuant 28 to Rule 4(f)(1) and the Convention is appropriate”). The Hague Convention also permits -93:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.268 Page 10 of 16 1 service of process through the destination state’s central authority or through other means 2 not objected to by the state.” Granger, 2021 WL 4658658, at *4 (citing Brockmeyer, 383 3 F.3d at 801); see also Water Splash, 137 S. Ct. at 1508 (“Submitting a request to a central 4 authority is not, however, the only method of service approved by the Convention.”). 5 Should service of the central authority prove unsuccessful, a court may order alternative 6 means of service pursuant to Rule 4(f)(3) so long as no international agreement prohibits 7 that alternative method. See, e.g., Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 8 1017 (9th Cir. 2002) (affirming the propriety of allowing service of process by regular mail 9 and e-mail under Fed. R. Civ. P. 4(f)(3) while concluding that “[c]onsidering the facts 10 presented by this case, … not only [was] service of process by e[-]mail … proper … but in 11 this case, it was the method of service most likely to reach RII”). “Courts have authorized 12 a variety of alternative methods of service abroad under current Rule 4(f)(3) and former 13 Rule 4(i)(1)(E), including not only ordinary mail and e-mail but also publication and telex.” 14 Brockmeyer v. May, 383 F.3d 798, 805 (9th Cir. 2004). “The decision whether to allow 15 alternative methods of serving process under Rule 4(f)(3) is committed to the ‘sound 16 discretion of the district court.’” Id. (quoting Rio Props., Inc. v. Rio Int’l Interlink, 284 17 F.3d 1007, 1016 (9th Cir. 2002) (permitting service on a foreign corporation by regular 18 mail and by e-mail, when authorized by the district court)). 19 A prerequisite to considering service by mail or e-mail is verifying that the receiving 20 country does not object to the means for service sought to be used by the plaintiff. Granger, 21 2021 WL 4658658, at *4; see also Brockmeyer, 383 F.3d at 801 (holding that plaintiffs 22 may 23 state’s central authority only if the state does not object to the alternative means). This is 24 because “[s]ome states have expressly objected to certain methods of service.” Id. (citing 25 Prem Sales, LLC v. Guandong Chigo Heating & Ventilation Equip. Co., Ltd., 494 F. Supp. 26 3d 404, 414 (N.D. Tex. 2020)). As long as a state has not expressly objected to a method 27 of service, courts will “look to ‘the internal service rules of the destination State to 28 determine whether that State would object to the particular method of service’ proposed or serve defendants internationally through means other than the -103:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.269 Page 11 of 16 1 used.” Id. (citing, inter alia, Dimensional Commc’ns, Inc. v. OZ Optics Ltd., 218 F. Supp. 2 2d 653, 656 (D.N.J. 2002) (looking to procedural rules in Ontario, Canada to determine 3 whether service was valid)); see also Inversiones Papaluchi S.A.S. v. Superior Ct., 20 Cal. 4 App. 5th 1055, 1065–66 (2018) (“In other words, in cases governed by the Hague Service 5 Convention, service by mail is permissible if two conditions are met: first, the receiving 6 state has not objected to service by mail; and second, service by mail is authorized under 7 otherwise-applicable law.”). 8 Here, the Complaint alleges Mr. Kinitz resides in “the Country of Canada in the 9 province of British Colombia.” ECF No. 1 at 2, ¶ 4. Thus, the Court looks to the federal 10 system of Canada, and more specifically the law of the Province of Ontario. Granger, 11 2021 WL 4658658, at *4. “Rule 16 of the Ontario Rules of Civil Procedure governs 12 service of process.”2 Id. Rule 16.02(1)(a) instructs that where a document must be 13 personally service, service on an individual must be made “by leaving a copy of the 14 document with the individual.” However, Rule 16.03 permits service of process in several 15 alternative ways, including but not limited to (1) acceptance of service by the defendant’s 16 lawyer, provided he or she endorses an acceptance of service; (2) service by mail to the 17 defendant’s last known address (only effective when received); or (3) if service at a 18 person’s place of residence cannot be effected, leaving the documents at the defendant’s 19 residence with anyone who appears to be an adult member of the same household, and 20 within the next day also mailing a copy to the person at the place of residence. See also 21 Granger, 2021 WL 4658658, at *4. 22 23 24 25 26 27 28 2 The Ontario Rules of Civil Procedure are publicly available at https://www.ontario. ca/laws/regulation/900194. At any stage of a proceeding, courts may take judicial notice of (1) facts not subject to reasonable dispute and “generally known within the trial court’s territorial jurisdiction” and (2) adjudicative facts, which “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b)(1)-(2). The Court takes judicial notice of this undisputed and publicly available information displayed on a government website. See, e.g., King v. Cty. of Los Angeles, 885 F.3d 548, 555 (9th Cir. 2018) (taking judicial notice of “undisputed and publicly available information displayed on government websites”). -113:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.270 Page 12 of 16 1 Notably, Rule 16.03(7)-(9) expressly provides for service “by e-mailing a copy of 2 the document in accordance with subrule 16.06.1(1)” but only where the documents are 3 being served on the Crown in Right of Ontario, a child’s lawyer, or a public guardian and 4 trustee. See also Rule 16.03(10) (providing that “[w]here service is made by e-mail under 5 subrule (7), (8) or (9) between 4 p.m. and midnight, it is deemed to have been made on 6 the following day”). Rule 16.06.1(1), which Rule 16.03 references, provides that “[t]he 7 e-mail message to which a document served by e-mail in accordance with these rules is 8 attached shall include, (a) the sender’s name, address, telephone number and e-mail 9 address; (b) the date and time of transmission; and (c) the name and telephone number of 10 a person to contact in the event of a transmission problem.” Here, service is not being 11 made on the Crown, a child’s lawyer, or a public guardian, and thus, does not appear to 12 be expressly authorized. 13 Rule 16.04(1), governing “Substituted Service of Dispensing with Service,” 14 provides that “[w]here it appears to the court that it is impractical for any reason to effect 15 prompt service of … any … document required to be served personally or by an alternative 16 to personal service under these rules, the court may make an order for substituted service 17 or, where necessary in the interest of justice, may dispense with service.” Where service 18 is made via substituted service, “the court shall specify when service in accordance with 19 the order is effective.” Rule 16.04(2). Finally, Rule 16.08 provides that if “a document 20 has been served in a manner other than one authorized by these rules or an order, the court 21 may make an order validating the service where the court is satisfied that, (a) the document 22 came to the notice of the person to be served; or (b) the document was served in such a 23 manner that it would have come to the notice of the person to be served, except for the 24 person’s own attempts to evade service.” 25 In sum, the Ontario Rules do not appear to authorize service by e-mail in this case 26 because it does not involve service upon the Crown in Right of Ontario, a child’s lawyer, 27 or a public guardian and trustee. Rule 16.03(7)-(9). However, Canada also explicitly 28 provides that the Court may make an order invalidating otherwise improper service. Rule -123:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.271 Page 13 of 16 1 16.08. The Court may also authorize substituted service. Rule 16.04. With that being 2 said, other courts have held that where a method of service does not appear to be permitted 3 under the Ontario Rules, that indicates Canada would object to that particular method of 4 service. See, e.g., Granger, 2021 WL 4658658, at *4 (denying the defendants’ motion to 5 dismiss and quashing service of the summons because service by leaving documents with 6 a designated individual was invalid as the Ontario Rules did not permit service in that 7 manner, indicating “Canada would object to the particular method of service utilized”). 8 Accordingly, should service on the Central Authority prove unsuccessful, Canada 9 would not object to alternative means of service. However, the Ninth Circuit requires 10 courts considering whether to authorize service of process by e-mail to consider, in 11 addition to the text of Rule 4, whether (1) the facts and circumstances necessitate court 12 intervention and justify service by e-mail and (2) the plaintiff has demonstrated service by 13 e-mail is reasonably calculated to apprise the defendant of the action and afford him a 14 reasonable opportunity to respond to the complaint. Newmont USA Ltd. v. Imatech Sys. 15 Cyprus Pty Ltd., No. 3:18-cv-00575-HDM-WGC, 2019 WL 3219144, at *2, 4 (D. Nev. 16 July 17, 2019) (granting the plaintiff’s motion to serve the defendant via e-mail under Rule 17 4(f)(3)) (citing Rio Properties Inc., 284 F.3d at 1016). “The authorization of service under 18 Rule 4(f)(3) is neither a last resort nor extraordinary relief and Plaintiff need not have 19 attempted every permissible means of service of process before petitioning the court for 20 alternative relief.” Id. at *2 (internal quotations omitted). 21 “Many district courts within the Ninth Circuit have authorized alternative service 22 by e[-]mail on foreign defendants under Rule 4(f)(3) since Rio.” See, e.g., Newmont USA 23 Ltd. v. Imatech Sys. Cyprus Pty Ltd., No. 318CV00575HDMWGC, 2019 WL 3219144, at 24 *3 (D. Nev. July 17, 2019) (granting a motion to serve a defendant in Cyprus by e-mail); 25 see also Facebook, Inc. v. Banana Ads, LLC, No. C-11-3619 YGR, 2012 WL 1038752, at 26 *2 (N.D. Cal. Mar. 27, 2012) (concluding Facebook had “demonstrated that service on the 27 Foreign Defendants via email is not prohibited by international agreement” and granting 28 the motion to serve the foreign defendants, some of which were located in Canada, via e-133:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.272 Page 14 of 16 1 mail); Williams-Sonoma Inc. v. Friendfinder Inc., No. C06-06572 JSW, 2007 WL 2 1140639, at *1 (N.D. Cal. Apr. 17, 2007) (granting the plaintiff’s motion to authorize 3 electronic mail service under Rule 4(f)(3), including on a defendant residing in Canada). 4 Plaintiffs argue that serving Mr. Kinitz at his publicly listed e-mail address of 5 david.kinitz@mail.utoronto.ca is reasonably likely to provide him with notice of this 6 lawsuit because he lists this address as his e-mail address on his Google Scholar profile as 7 well as in recent articles published articles in 2021. Mot. at 2:25-3:2. Plaintiffs also point 8 out that “[a]ccording to Mr. Kinitz’s Twitter account, Mr. Kinitz acknowledges in Twitter 9 posts that he not only reads his regular academic email, but even reads emails in his 10 academic junk/spam folder.” 11 demonstrated that Mr. Kinitz has an active and publicly displayed e[-]mail address and 12 have demonstrated good reason to believe that Mr. Kinitz will receive notice of the lawsuit 13 via that email address.” Id. at 5:1-3. Id. at 3:4-6. Thus, they argue that they “have also 14 Mr. Kinitz’s Google Scholar Profile also shows a hyperlink for his “[v]erified email 15 at mail.utoronto.ca.” Exhibit 3 to Weisenburger Decl., ECF No. 6-2 at 12. This profile 16 lists as the first article, an article from 2021. Id. That article was attached as Exhibit 4 to 17 the Declaration of Robert Weisenburger and shows it was published on January 8, 2021, 18 listed Mr. Kinitz as an author, and states “David J. Kinitz, Email: david.kinitz@mail. 19 utoronto.ca.” Exhibit 4 to Weisenburger Decl., ECF No. 6-2 at 14; see also Mot. at 2:28- 20 3:2. Additionally, Plaintiffs provided the Court with a print-out from the University of 21 Toronto Journal of Public Health, which show Mr. Kinitz as a member of the Editorial 22 Team and lists his e-mail address on its website as the same e-mail address in the article. 23 Weisenburger Decl., ECF No. 6-2 at 3, ¶ 8; see also https://utjph.com/index.php/utjph/ 24 about/editorialTeam; Exhibit 5 to Weisenburger Decl., ECF No. 6-2 at 32 (showing 25 various profiles for the editorial team, including a listing for “David J. Kinitz MSW, PhD 26 Student, Contact: david.kinitz@mail.utoronto.ca”); Mot. at 3:2-4. Finally, Plaintiffs 27 provide the Court with Tweets from Mr. Kinitz suggesting he not only reads his e-mails 28 but even checks his spam folder. Mot. at 3:3-6. Plaintiffs provide the Court with various -143:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.273 Page 15 of 16 1 tweets from a Twitter profile for David J. Kinitz, whose username is @DJKinitz, which 2 includes a Tweet from July 13, 2021, at 8:26 a.m., that says, “Anyone else spend more 3 time reading their junk emails for the accolades than they do their primary inbox that was 4 not from a predatory journal?” Exhibit 6 to Weisenburger Decl., ECF No. 6-2 at 37. This 5 Tweet is still publicly available at https://mobile.twitter.com/DjKinitz. 6 Thus, the Court concludes that in the event service on the Central Authority proves 7 unsuccessful, (1) the facts and circumstances of this case necessitate Court intervention 8 and justify service by e-mail and (2) service at Mr. Kinitz’s e-mail address, 9 david.kinitz@mail.utoronto.ca, is reasonably calculated to apprise Mr. Kinitz with notice 10 of this lawsuit and allow him a reasonably opportunity to respond. Newmont, 2019 WL 11 3219144, at *2, 4. 12 Finally, Plaintiff’s acknowledge that Rule 4 of the Federal Rules of Civil Procedure 13 normally requires a plaintiff to serve a defendant within ninety (90) days of filing the 14 complaint. Fed. R. Civ. P. 4(m). However, “[t]his subdivision (m) does not apply to 15 service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice 16 under Rule 71.1(d)(3)(A),” id., and thus, would not apply because Mr. Kinitz is in Canada. 17 Mot. at 5:20-24; see also Granger, 2021 WL 4658658, at *3 (“Because delays in 18 effectuating international service ‘often occur,’ see Advisory Committee Notes on the 19 2016 Amendment to Fed. R. Civ. P. 4, however, the federal rules exempt international 20 service from the ninety-day deadline, see Fed. R. Civ. P. 4(m).”). However, “Plaintiffs 21 nevertheless recognize that international service must be effected upon the defendant 22 within a reasonable amount of time after having filed the complaint.” Mot. at 5:20-24. 23 Thus, they ask for the Court to grant them ninety (90) days from its order on this Motion 24 to effectuate service of process. Id. at 5:24-25. The Court agrees that this is a reasonable 25 time to effectuate service of process and grants the request. 26 V. CONCLUSION 27 Plaintiffs’ Motion for an Order Authorizing Service of the Summons and 28 Complaint Defendant David J. Kinitz by e-mail and/or mail is DENIED-IN-PART as -153:21-cv-1297-BEN-BLM Case 3:21-cv-01297-BEN-BLM Document 13 Filed 11/04/21 PageID.274 Page 16 of 16 1 follows: 2 1. 3 4 Plaintiffs must attempt to serve Mr. Kinitz by serving the Central Authority for Ontario, Canada. 2. If Plaintiffs receive notice that Mr. Kinitz cannot be served through service 5 upon the Central Authority, they shall serve Mr. Kinitz at his publicly listed e-mail 6 address of david.kinitz@mail.utoronto.ca within ten (10) days of this Order, using the 7 “Return Receipt Requested” feature. 8 9 10 3. Any return of service on Mr. Kinitz that Plaintiffs file must include proof that Defendants attempted, at a minimum, to verify actual receipt of the e-mail message. 4. Plaintiffs shall also mail a copy of the Summons, Complaint, and related 11 documents to Mr. Kinitz at the Dalla Lana School of Public Health, University of Toronto, 12 155 College Street, RM 540, Toronto, Ontario, using certified mail, if possible. 13 14 15 16 5. Pursuant to Plaintiffs’ request, Plaintiffs shall have ninety (90) days from the date of this order to effectuate service of process. IT IS SO ORDERED. DATED: November 4, 2021 HON. ROGER T. BENITEZ United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -16- 3:21-cv-1297-BEN-BLM

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