Opinion
Case No. 21-cv-60493-BLOOM/Valle
03-04-2021
WHIRLPOOL CORPORATION, WHIRLPOOL PROPERTIES, INC., and MAYTAG PROPERTIES, LLC, Plaintiffs, v. THE INDIVIDUALS, PARTNERSHIPS AND UNINCORPORATED ASSOCIATIONS IDENTIFIED ON SCHEDULE "A," Defendants.
SEALED ORDER GRANTING PLAINTIFFS' EX PARTE MOTION TO AUTHORIZE ALTERNATIVE SERVICE OF PROCESS
THIS CAUSE is before the Court upon Plaintiffs, Whirlpool Corporation, Whirlpool Properties, Inc., and Maytag Properties, LLC's ("Plaintiffs") Ex Parte Motion for Order Authorizing Alternate Service of Process on Defendants Pursuant to Federal Rule of Civil Procedure 4(f)(3), ECF No. [7] ("Motion"). In their Complaint, Plaintiffs set forth claims against Defendants for (1) trademark counterfeiting and infringement, (2) false designation of origin, (3) common law unfair competition, and (4) common law trademark infringement. See ECF No. [1]. More specifically, Plaintiffs allege that Defendants promote, sell, offer for sale, and distribute goods bearing counterfeits and confusingly similar imitations of Plaintiffs' trademarks, thereby infringing Plaintiffs' trademarks. Id. Plaintiffs contend that Defendants are accomplishing these infringement activities by operating Internet based e-commerce stores under their respective seller identities identified on Schedule "A" hereto (the "Seller IDs").
Plaintiffs contend that Defendants operate via the Internet and utilize electronic means as reliable forms of contact. See ECF No. [7] at 3-6. According to Plaintiffs, they have good cause to believe that Defendants are all residents of the People's Republic of China ("China"), the People's Democratic Republic of Algeria ("Algeria"), or other foreign jurisdictions, and/or redistribute products from sources in those locations. Id. at 13. Plaintiffs further contend that Defendants have at least one operational form of electronic contact, demonstrating that this means of contact is not just effective, but the most reliable means of communicating with Defendants. Id. at 3-6. Consequently, Plaintiffs assert that e-mail, including onsite contact, is the most reliable means of providing Defendants with notice of this action. Id. at 9-10.
Rule 4(f)(3) allows a district court to order an alternate method for service to be effected upon foreign defendants, provided that it is not prohibited by international agreement, and is reasonably calculated to give notice to the defendants. See Brookshire Bros. v. Chiquita Brands Int'l, Inc., No. 05-CIV-21962, 2007 WL 1577771, at *2 (S.D. Fla. May 31, 2007) ("[D]istrict courts have found broad discretion under Rule 4(f)(3) to authorize other methods of service that are consistent with due process and are not prohibited by international agreements." (citing Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 921, 927 (11th Cir. 2003))); Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). The plain language of Rule 4(f)(3) reflects that the decision to issue an order allowing alternate means of service lies within the discretion of the district court.
Service by e-mail is not prohibited under international agreement in this case. Although the United States and China are signatories to the Hague Convention on the Service Abroad of Extra-Judicial Documents in Civil and Commercial Matters (the "Hague Convention"), the Hague Convention does not specifically preclude service of process via e-mail or by posting on a designated website. Where a signatory nation has objected to the alternative means of service provided by the Hague Convention, that objection is expressly limited to those means and does not represent an objection to other forms of service, such e-mail or website posting. Stat Med. Devices, Inc. v. HTL-Strefa, Inc., No. 15-cv-20590, 2015 WL 5320947, at *1 (S.D. Fla. Sept. 14, 2015) (noting that an objection to the alternative forms of service set forth in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 658 U.N.T.S. 16, is limited to the specific forms of service objected to). A court acting under Rule 4(f)(3), therefore, remains free to order alternative means of service where a signatory nation has not expressly objected to those means. See Gurung v. Malhotra, 279 F.R.D. 215, 219 (S.D.N.Y. 2011). Accordingly, service by e-mail or internet communication does not violate an international agreement.
Algeria is not a signatory to the Hague Convention. See ECF No. [7] at 13.
China has not expressly objected to service via e-mail or website posting. See ECF No. [7-2].
Rule 4(f)(3) was "adopted in order to provide flexibility and discretion to the federal courts in dealing with questions of alternative methods of service of process in foreign countries." In re Int'l Telemedia Assoc., Inc., 245 B.R. 713 (Bankr. N.D. Ga. 2000). What constitutes appropriate service varies depending on the circumstances of the case and turns on the court's determination of whether the alternative method is reasonably calculated to apprise the parties of the pendency of the action and afford them an opportunity to present their objections. Philip Morris USA, Inc. v. Veles Ltd., No. 06 CV 2988(GBD), 2007 WL 725412, at *2 (S.D.N.Y. Mar. 12, 2007).
Here, the Court finds that Plaintiffs have shown good cause for leave to allow service of the Summonses, Complaint, and all future filings in this matter upon each Defendant via e-mail and via posting on a designated website.
Accordingly, after careful review of the Motion, the evidence submitted in support of the Motion, and the applicable law, it is ORDERED AND ADJUDGED as follows:
1. Plaintiffs' Motion, ECF No. [7], is GRANTED.
2. Plaintiffs shall serve the Summonses, Complaint, and all filings in this matter upon Defendants via e-mail by providing the address to Plaintiffs' designated serving notice website to Defendants via the e-mail accounts provided by each Defendant as part of the data related to their respective e-commerce store, including customer service e-mail addresses and onsite contact forms, or via the e-commerce platform e-mail for each of the e-commerce stores. See attached Schedule "A" which lists Defendants by Defendant number, Seller ID, and associated means of contact.
3. Plaintiffs shall serve Defendants via website posting by posting a copy of the Summonses, Complaint, and all filings in this matter on Plaintiffs' designated serving notice website appearing at the URL http:// servingnotice.com/xA14k/index.html.
DONE AND ORDERED in Chambers at Miami, Florida, on March 4, 2021.
/s/ _________
BETH BLOOM
UNITED STATES DISTRICT JUDGE Copies to: Counsel of Record
SCHEDULE "A"
DEFENDANTS BY NUMBER , SELLER ID, AND MEANS OF CONTACT
Def. No. Defendant / Seller ID Means of Contact 1 criquin_12 labrindle@outlook.com 2 kathphe_76 ecolbrea@yahoo.com 3 daabra_2441 davidabramson684@yahoo.com 4 dress37 dresstangs@gmail.com 5 riclan83 richardlandon914@yahoo.com 6 voya817 voyaberg@gmail.com 7 wows_5863 wowsherd@gmail.com 8 dakok97 Maxips@yahoo.com 9 deadega0 Pattygrinder@hotmail.com 10 keengel2345 Marcsflea@gmail.com 11 prin-9599 prinhera@yahoo.com 12 shun_6873 Shunsurt@hotmail.com 13 wellg_79 Geheidbdidhe10@gmail.com 14 aunwic0 gambitesco@yahoo.com 15 smart-5331 smarttleysd@gmail.com 16 mabla1047 mariablanco232@aol.com 17 lab-271 Wschensn7neng@hotmail.com 18 Shop5257090 Store aliexpress.com/store/5257090 19 97k-cube pp.xjh8@hotmail.com 20 trabroth_23 kulonembong1@gmail.com 21 518chakesi dong1994yi@outlook.com 22 huayunjiaoyu juleidy4107@163.com 23 irenestor65 Mrdaih68hao@hotmail.com 24 danigo-4392 chengweiqi2020@163.com 25 zhumeiling wish.com/merchant/5a7c04af417cee603ac99bd2 26 aleeya_19 Thfan7aj8wu9@hotmail.com 27 jozach45 Mrguzyou98z@hotmail.com 28 mariahgofil meizhen1231xie@hotmail.com 29 matthew-pope vhsqpnyjihs@gmail.com 30 mylesdeb_67 zhe933zhongmr@hotmail.com 31 stetlerstef_13 Wsheda88mi@hotmail.com 32 macha_2268 kuyuuuxixoaaljkjm@outlook.com 33 nancyb9863 Yanjpppjsdccx@outlook.com 34 nichro-4155 HuujKU858Jnkl@outlook.com 35 niruydfwesr32 niruydfwesrbnfryu6r4598@gmail.com 36 warrencl71 luuuRINGH@outlook.com 37 jose.agu_44 uwuaoo01j8jdqa@gmail.com 38 meganb-62 meganbrewis05@gmail.com 39 otsra_50 otsranthfl@gmail.com 40 dolmccle61 Earfusi@hotmail.com 6 Def. No. Defendant / Seller ID Means of Contact 41 insic-76 kokutagi413@gmail.com 42 xuninini wish.com/merchant/5b977a2f063ce14991a745ce 43 qiantec qiantecc@gmail.com 44 bratb4190 brookeshelton1971@gmail.com 45 Shop910563236 Store aliexpress.com/store/910563236 46 seedekez algraouf7@gmail.com 47 rearrange518 peacesl@163.com 48 vicselv0 tjdslmx183@163.com 49 pamur-8881 tjdshb183@163.com 49 brast_7625 tjdshb183@163.com 50 andkis65 tjdsql193@163.com 51 chrivang84 a17104420713@163.com 52 darobe440054 daleroberson998@yahoo.com 53 doupow-75 tjdslh193@163.com 54 incat-88 incatechno@yahoo.com 55 mcg_2100 tjdsyjh173@163.com 56 mdonal_1246 mdonald19371@gmail.com 57 micko-6335 kohnm164@gmail.com 58 phidan_3952 dangelophilip990@yahoo.com 59 ricfu_5842 richardfuori@yahoo.com 60 styl-7725 jww8968@163.com 61 wiibol_4 Deluxedn@yahoo.com 62 willong-9719 tjdslsw321@163.com 63 daga_8967 LQ16520741546@163.com 64 loxevery321 LH16520744191@163.com 64 hawhi_50 LH16520744191@163.com