Amazon.com Inc et al v. Pengyu Building Materials et al, No. 2:2021cv00358 - Document 26 (W.D. Wash. 2023)
Court Description: ORDER granting Plaintiffs' 20 Ex Parte Motion for Alternative Service. Plaintiffs are ORDERED to complete service and file proof of service by 7/6/2023. Signed by Hon. S. Kate Vaughan. (SB)
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Amazon.com Inc et al v. Pengyu Building Materials et al Doc. 26 Case 2:21-cv-00358-JNW-SKV Document 26 Filed 06/22/23 Page 1 of 8 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 AMAZON.COM, INC., et al., 10 11 12 Case No. C21-0358-JNW-SKV Plaintiffs, 9 v. PENGYU BUILDING MATERIALS, et al., ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR ALTERNATIVE SERVICE Defendants. 13 14 15 INTRODUCTION Plaintiffs Amazon.com, Inc. (Amazon) and GoPro, Inc. (GoPro) filed an Ex Parte Motion 16 for Alternative Service. Dkt. 20. They seek an order authorizing completion of service of 17 process by email on Defendants Jing Chen and Jinfang Fang. The Court, having considered the 18 motion, all documents filed in support, and the balance of the record, herein GRANTS Plaintiffs’ 19 motion for the reasons set forth below. 20 21 BACKGROUND This matter involves allegations of trademark infringement, false designation of origin 22 and false advertising under the Lanham Act, and violations of the Washington Consumer 23 Protection Act associated with the sale of counterfeit GoPro camera accessories in the ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR ALTERNATIVE SERVICE - 1 Dockets.Justia.com Case 2:21-cv-00358-JNW-SKV Document 26 Filed 06/22/23 Page 2 of 8 1 Amazon.com store (“Amazon Store”). See Dkts. 1 & 16. In filing suit, Plaintiffs named as 2 Defendants: (1) Pengyu Building Materials; (2) Xue Minghai, d/b/a Pengyu Building 3 Materials/Wholesale of Outdoor; (3) Chentaotao, d/b/a Nana Gyenfie/Explore the Outdoors; (4) 4 Nana Gyenfie; (5) Hu Wei; (6) Zhao Ronglin; (7) Li Zhongyi; (8) Pan Linxing; and (9) Zhu 5 Shaochuan. Dkt. 1. They alleged Defendants sold counterfeit goods through a number of 6 different Amazon “Selling Accounts.” Id. 7 Through investigation, Plaintiffs discovered Defendants had provided invalid addresses 8 and telephone numbers in connection with the Selling Accounts, and that the Selling Accounts 9 were owned by entities located in China. Dkt. 21, ¶¶2-11. As authorized by the Court, Plaintiffs 10 conducted third-party discovery, including discovery on various email service providers and a 11 financial institution, each of which had been used by one or more Defendants in connection with 12 their Selling Accounts. Id., ¶¶12-18. 13 The discovery showed that six of seven Selling Accounts were linked to two Payoneer 14 Inc. (Payoneer) accounts held by Chen and Fang. Id., ¶18. Specifically, discovery showed that 15 Chen is responsible for a Payoneer account linked to the Explore the Outdoors Selling Account, 16 while Fang is responsible for the following five Selling Accounts: Pengyu Building 17 Materials/Wholesale of Outdoor; The Adventure – USA; LZI & Outdoor Adventure Wholesale; 18 PLX Sports Shop; and Quality is Job 1. Id. The discovery also showed that the Payoneer 19 accounts received disbursements from the respective Selling Accounts. Id., ¶¶18-19. Given this 20 information, Plaintiffs filed a First Amended Complaint adding Chen and Fang as Defendants. 21 Dkt. 16. 22 Plaintiffs also investigated Chen and Fang’s whereabouts for service. Payoneer’s 23 production included physical addresses located in China for Chen and Fang, and showed that the ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR ALTERNATIVE SERVICE - 2 Case 2:21-cv-00358-JNW-SKV Document 26 Filed 06/22/23 Page 3 of 8 1 IP addresses from which Chen and Fang accessed their Payoneer accounts trace back to China. 2 Id., ¶¶20-21. However, through further investigation, Plaintiffs found the address associated 3 with Chen does not exist and that the address associated with Fang housed a grain and feed shop 4 with no apparent ties to this action. Id., ¶20. 5 The discovery did not reveal any information on the Defendants named in the original 6 Complaint. Id., ¶23. Nor did Payoneer’s document production link the seventh Selling Account 7 at issue – MrHu Shop – with Chen or Fang. Id., ¶23 & n.2. Plaintiffs, accordingly, anticipate 8 eventually dismissing Defendants other than Chen and Fang, and do not currently seek to serve 9 the email address found to be associated with the MrHu Shop Selling Account. Id. 10 As related to Chen and Fang, Plaintiffs contend it can be inferred from the discovery that 11 they are responsible for the six Selling Accounts described above. Id., ¶19. They identify the 12 following email addresses as associated with those accounts: (1) Xueminghai96@sina.com 13 (Pengyu Building Materials); (2) Taotaochen83@sina.com (Explore the Outdoors); (3) 14 Zhaoronglin12@sina.com (The Adventure – USA); (4) lizhongyii@163.com (LZY & Outdoor 15 Adventure Wholesale); (5) Panlinxing87@163.com (PLX Sports Shop); and (6) 16 Zhushaochuan86@hotmail.com (Quality is Job 1). Dkt. 22, ¶6. They assert that Amazon’s 17 records reflect that Defendants provided the above-described email addresses in order to register 18 and access the Selling Accounts, that they regularly received and responded to communications 19 from Amazon using the addresses, and that the addresses are the primary means of 20 communication from Amazon to the individuals or entities associated with the accounts. Id., 21 ¶¶4-7. They also provide more specific information as to the times during which the addresses 22 were used and the time the associated Selling Accounts were suspended. Id., ¶¶8-13. 23 ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR ALTERNATIVE SERVICE - 3 Case 2:21-cv-00358-JNW-SKV Document 26 Filed 06/22/23 Page 4 of 8 1 On June 7, 2023, Plaintiffs sent emails to each of the email addresses described above 2 using RPost, an online service that provides proof of delivery emails. Dkt. 25, ¶2. The emails 3 apprised Defendants of the pending actions and provided copies of the Amended Complaint, 4 civil cover sheet, and summonses. Id. Plaintiffs did not receive error notices, bounce-back 5 messages, or any other indication that the emails had not been delivered. Id. They received 6 confirmation via RPost that the emails were successfully delivered. Id. They now move for an 7 order authorizing them to complete service of process on Chen and Fang by email. DISCUSSION 8 9 Federal Rule of Civil Procedure 4(f) permits service of process on individuals in foreign 10 countries by: (1) internationally agreed means of service reasonably calculated to give notice, 11 such as those authorized by the Hague Convention on the Service Abroad of Judicial and 12 Extrajudicial Documents; (2) if there is no internationally agreed means, in accordance with the 13 foreign country’s law; or (3) “by other means not prohibited by international agreement, as the 14 court orders.” Fed. R. Civ. P. 4(f)(3). To obtain a court order under Rule 4(f)(3), a plaintiff must 15 “demonstrate that the facts and circumstances of the present case necessitate[] the district court’s 16 intervention.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). 17 In addition to the requirements of Rule 4(f), “a method of service of process must also 18 comport with constitutional notions of due process.” Id. “To meet this requirement, the method 19 of service crafted by the district court must be ‘reasonably calculated, under all the 20 circumstances, to apprise interested parties of the pendency of the action and afford them an 21 opportunity to present their objections.’” Id. at 1016-17 (quoting Mullane v. Cent. Hanover 22 Bank & Trust Co., 339 U.S. 306, 314 (1950)). 23 /// ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR ALTERNATIVE SERVICE - 4 Case 2:21-cv-00358-JNW-SKV Document 26 Filed 06/22/23 Page 5 of 8 1 2 A. Rule 4(f) Plaintiffs assert their inability to locate a physical address for Chen or Fang. See Dkt. 21. 3 Plaintiffs’ investigation revealed that Chen and Fang reside at unknown locations overseas, 4 likely in China. China has been a party to the Hague Convention since 1992. See Contracting 5 Parties to Hague Convention, https://www.hcch.net/en/instruments/conventions/status- 6 table/?cid=17 (last visited June 21, 2023). 7 The Hague Convention expressly “shall not apply where the address of the person to be 8 served with the document is not known.” Hague Convention, T.I.A.S. No. 6638 (Feb. 10, 1969), 9 20 U.S.T. 361, 1969 WL 97765. Here, because they have been unable to locate a physical 10 address for Chen or Fang, Plaintiffs could not utilize methods authorized by the Hague 11 Convention. Moreover, because the Convention does not apply, it does not bar service by email. 12 Whether or not the Hague Convention applies, this Court and other courts have 13 concluded that email service on individuals located in China is not prohibited by the Hague 14 Convention or by any other international agreement. See, e.g., Rubie’s Costume Co., Inc. v. Yiwu 15 Hua Hao Toys Co., C18-1530-RAJ, 2019 WL 6310564, at *3 (W.D. Wash. Nov. 25, 2019) 16 (email service in China “not expressly prohibited by international agreement”). See also 17 Amazon.com, Inc. v. Dafang HaoJiafu Hotpot Store, No. C21-0766-RSM, 2021 WL 4307067, at 18 *1-2 (W.D. Wash. Sept. 22, 2021) (stating “courts in this district regularly authorize requests for 19 service by email on foreign defendants in countries that are parties to the Convention” and 20 granting motion for alternative service in China and Hong Kong). 21 Plaintiffs here demonstrate the need for the Court’s intervention. The Court further finds 22 that service by email is not prohibited by international agreement. Plaintiffs therefore show that 23 an Order permitting service by email comports with Rule 4(f). ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR ALTERNATIVE SERVICE - 5 Case 2:21-cv-00358-JNW-SKV Document 26 Filed 06/22/23 Page 6 of 8 1 2 B. Due Process The Court must also determine whether service of process on Chen and Fang through 3 email would comport with due process. That is, the Court must consider whether this method of 4 service is “reasonably calculated, under all the circumstances,” to apprise Chen and Fang of this 5 action and afford them the opportunity to object. Mullane, 339 U.S. at 314. 6 Plaintiffs show that Chen and Fang are responsible for Payoneer accounts associated with 7 the Selling Accounts at issue and that the above-described email addresses were used to conduct 8 business on Amazon, serve as the primary means of communication between Amazon and 9 Defendants, and that the addresses remain active, as demonstrated by test emails sent 10 successfully and with no indication of a failure to deliver. See Dkt. 21, ¶¶18-21; Dkt. 22, ¶¶5-13; 11 Dkt. 25, ¶2. Plaintiffs argue that this showing supports the conclusion that service on Chen and 12 Fang by email is reasonably calculated to provide them with actual notice. 13 As found by the Ninth Circuit, the decision to allow service by email lies within the 14 district court’s discretion where the defendant has “structured its business such that it could be 15 contacted only via its email address” and “designated its email address as its preferred contact 16 information.” Rio Props., Inc., 284 F.3d at 1018 (emphasis in original). The situation here is 17 somewhat less clear because Amazon suspended the Selling Accounts at issue. Dkt. 22, ¶¶8-13. 18 As a result, Chen and Fang no longer conduct business with Amazon through the accounts. 19 Plaintiffs have, however, verified that the email addresses used to register and otherwise 20 associated with the Selling Accounts remain active. 21 This Court has concluded that the due process requirement for alternative service by 22 email is satisfied “when the plaintiff demonstrates that the email addresses at issue are valid and 23 are successfully receiving messages.” Amazon.com Inc. v. KexleWaterFilters, C22-1120-JLR, ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR ALTERNATIVE SERVICE - 6 Case 2:21-cv-00358-JNW-SKV Document 26 Filed 06/22/23 Page 7 of 8 1 2023 WL 2017002, at *4 (W.D. Wash. Feb. 15, 2023). The Court has, accordingly, authorized 2 service by email where plaintiffs identified email addresses defendants used for Amazon Selling 3 Accounts and verified the addresses remained active, finding sufficient indicia that the 4 defendants were likely to receive notice if served by email and due process concerns satisfied. 5 See, e.g., KexleWaterFilters, 2023 WL 3902694, at *2 (W.D. Wash. May 31, 2023); 6 Amazon.com Inc. v. Bamb Awns, No. C22-402-MLP, 2023 WL 2837076, at *3 (W.D. Wash. 7 Apr. 7, 2023). Accord Bright Sols. for Dyslexia, Inc. v. Lee, C15-1618, 2017 WL 10398818, at 8 *7 (N.D. Cal. Dec. 20, 2017) (finding service by email proper “because Defendants structured 9 their counterfeit business such that they could only be contacted by email[,]” the court authorized 10 service by email, and the emails sent did not bounce back as undeliverable), report and 11 recommendation adopted, 2018 WL 4927702 (N.D. Cal. Mar. 26, 2018). In contrast, where 12 plaintiffs did not indicate whether they had attempted to contact any defendants using email 13 addresses associated with Amazon Selling Accounts, nor represented the defendants had notice 14 of the lawsuit, the Court denied service by email upon finding a failure to demonstrate the email 15 addresses were still valid. KexleWaterFilters, 2023 WL 2017002, at *2, 4 (permitting plaintiffs 16 to “renew their motion with evidence of recent communications to Defendants that demonstrates 17 that service by email is a reliable method to provide Defendants with notice of the pendency of 18 [the] action.”), renewed motion granted, KexleWaterFilters, 2023 WL 3902694, at *2. See also 19 Amazon.com, Inc. v. Tian Ruiping, No. C21-0159-TL, 2022 WL 486267, at *3-5 (W.D. Wash. 20 Feb. 17, 2022) (denying alternative service by email where plaintiffs had obtained physical 21 addresses for defendants, but did not demonstrate the addresses were incorrect or inadequate for 22 service, did not show any defendant was aware of the pending action, and did not indicate any 23 ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR ALTERNATIVE SERVICE - 7 Case 2:21-cv-00358-JNW-SKV Document 26 Filed 06/22/23 Page 8 of 8 1 attempts to contact defendants, including attempted communication via email, through Selling 2 Accounts, or by any other means). 3 Plaintiffs here demonstrate that all physical addresses obtained in relation to Chen and 4 Fang were incorrect or otherwise inadequate for service. They also demonstrate that email 5 addresses used by Chen and Fang to register Amazon Selling Accounts, serving as the primary 6 means of communication with Amazon, and used to conduct business in the Amazon Store 7 remain active. Together, these circumstances provide sufficient indicia that Chen and Fang are 8 likely to receive notice if served by email. The Court therefore finds service through email is 9 reasonably calculated to apprise Chen and Fang of this action and provide an opportunity to 10 11 12 respond, and thus satisfies concerns of due process. CONCLUSION The Court, in sum, GRANTS Plaintiffs’ Ex Parte Motion for Alternative Service. Dkt. 13 20. Specifically, the Court authorizes Plaintiffs to serve Defendants through the following email 14 addresses: (1) Defendant Jing Chen: Taotaochen83@sina.com; and (2) Defendant Jinfang Fang: 15 (a) Xueminghai96@sina.com; (b) Zhaoronglin12@sina.com; (c) Lizhongyii@163.com; (d) 16 Panlinxing87@163.com; and (e) Zhushaochuan86@hotmail.com. Plaintiffs are ORDERED to 17 complete service and file proof of service by July 6, 2023. 18 Dated this 22nd day of June, 2023. 19 A 20 S. KATE VAUGHAN United States Magistrate Judge 21 22 23 ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR ALTERNATIVE SERVICE - 8
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