Opinion
C23-1401-MLP
09-12-2023
XINLIANG SHI, Plaintiff, v. JUN BIN ZHU, Defendant.
ORDER
MICHELLE L. PETERSON, United States Magistrate Judge.
This matter is before the Court on Plaintiff Xinliang Shi's “Motion for Leave of Court for Alternative Service” (“Plaintiff's Motion”). (Dkt. # 3.) Plaintiff filed their complaint against Jun Bin Zhu (“Defendant”) on September 10, 2023. (Dkt. # 1.) Plaintiff alleges Defendant commercially used a visual work of art entirely identical to a work registered by Plaintiff with the United States Copyright Office, without permission or licensing, and against Plaintiff's consent to offer products for sale on Amazon. (See dkt. # 1 at ¶¶ 3.1-3.3, 4.1-4.3.)
Based on Defendant's alleged copyright infringement, Plaintiff served Amazon.com, Inc. with a notice of infringement pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 501, et seq. (Dkt. # 1 at ¶ 3.4.) Amazon.com delivered a DMCA takedown notice to Defendant, who then filed a DMCA counter notice agreeing to be sued in this District and to accept service. (Id. at ¶¶ 3.4, 3.6.)
Plaintiff's Motion seeks leave for alternative service because Defendant is located in China. (See dkt. # 3.) Plaintiff notes that in Defendant's DMCA counter notice, Defendant provided an email address of 255324030@qq.com and a physical address of Zhu Jun Bin Room 202, Unit 2, Building 6, Beiyang Community Beiyang Village, Tangxia Town Wenzhou City, Ruian, Zhejiang, China 325200. (Id. at 1-2.) Plaintiff therefore requests the Court grant leave for alternative service of Plaintiff's complaint by email and by United States Postal Service Priority Mail Express International to the physical address provided. (Id. at 3.) Plaintiff's Motion does not indicate whether Plaintiff has commenced service pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Convention”). (See dkt. # 3.)
Federal Rule of Civil Procedure 4(f) permits service of process on individuals in foreign countries by: (1) internationally agreed methods such as those authorized by the Hague Convention; (2) if there is no internationally agreed means, in accordance with the foreign country's law; or (3) by “other means not prohibited by international agreement, as the court orders.” Fed.R.Civ.P. 4(f)(3). To obtain a court order under Rule 4(f)(3), a plaintiff must “demonstrate that the facts and circumstances of the present case necessitated the district court's intervention.” Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002).
Here, though Plaintiff “need not have attempted every permissible means of service of process before petitioning the court for alternative relief,” see Rio Props., Inc., 284 F.3d at 1016, Plaintiff has failed to demonstrate the facts and circumstances of this case necessitate this Court's intervention at this time. Specifically, Plaintiff fails to detail or explain any efforts or attempts to serve Defendant despite knowledge of their physical address and Defendant's agreement in the DMCA counter notice that they will accept service. China, like the United States, is a party to the Hague Convention. See Contracting Parties, available at https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last viewed September 12, 2023). The Hague Convention expressly “shall not apply where the address of the person to be served with the document is not known.” Hague Convention, art. 1, available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=17 (last viewed September 12, 2023). Conversely, because the physical address of Defendant is known, Plaintiff may utilize methods authorized by the Hague Convention.
Accordingly, having considered Plaintiff's Motion, the governing law, and the balance of the record, the Court DENIES Plaintiffs' Motion (dkt. # 3) without prejudice for failure to comport with the requirements of Rule 4(f)(3).