Enovative Technologies, LLC v. Gabriel Reuven Leor ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1154
ENOVATIVE TECHNOLOGIES, LLC,
Plaintiff - Appellee,
v.
GABRIEL REUVEN LEOR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:14-cv-03956-JKB)
Submitted: July 28, 2015 Decided: August 14, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gabriel Reuven Leor, Appellant Pro Se. Lori Vaughn Ebersohl,
APATOFF PETERS EBERSOHL, Falls Church, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Enovative Technologies, LLC (“Enovative”), filed a civil
complaint against Gabriel Reuven Leor (“Leor”), the former Chief
Executive Officer (“CEO”) of Enovative, alleging that he was
engaged in conduct purposely designed to economically damage and
irreparably harm his former employer by hijacking websites used
by Enovative. The district court granted Enovative’s motions
for a temporary restraining order and a preliminary injunction
in the action below. Leor appeals from those two orders,
raising numerous issues.
The issues Leor raises on appeal are whether: (1) the
district court had diversity jurisdiction; (2) Virginia law
permits a suit by a limited liability company against its former
chief executive officer in federal court; (3) the employment
agreement relied on by Enovative permits litigation in federal
court in Baltimore; (4) a federal court can order an owner of a
website to relinquish ownership in a preliminary hearing;
(5) the district court had personal jurisdiction to effect
service of process via email to Leor in Thailand; (6) the
district court could grant injunctive relief when money damages
were available; (7) the district court properly ordered fines
and attorney’s fees on preliminary motions; (8) the district
court improperly handled Leor’s motion to dismiss because the
court decided the issue on the basis of subject matter
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jurisdiction before Enovative had filed a response to Leor’s
motion to dismiss; (9) Enovative could rely on extracts of a
transcript that Leor did not have; (10) the district court
properly overruled Leor’s objections during the evidentiary
hearings; and (11) the district court erred by denying Leor, who
was proceeding pro se, permission to file electronically.
The record does not contain a transcript of court hearings
conducted on February 12 and 13, 2015. An appellant has the
burden of including in the record on appeal a transcript of all
parts of the proceedings material to the issues raised on
appeal. Fed. R. App. P. 10(b)(1); 4th Cir. R. 10(c)(1). An
appellant proceeding on appeal in forma pauperis is entitled to
transcripts at government expense only in certain circumstances
not applicable here. 28 U.S.C. § 753(f) (2012). By failing to
produce a transcript or to qualify for the production of
transcripts at government expense, Leor has thus waived review
of the issues on appeal that depend upon the transcript to show
error. See generally Fed. R. App. P. 10(b)(2); Keller v. Prince
George’s Cnty., 827 F.2d 952, 954 n.1 (4th Cir. 1987). Because
Leor fails to provide this court with the transcripts of the
hearings conducted on February 12 and 13, 2015, his claims
raised in issues 1, 3, 4, 8, 9, and 10 cannot be properly
addressed. Thus, by failing to submit to the court the above
transcripts, Leor has waived appellate review of these issues.
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We address Leor’s remaining issues in turn. In issue 2
Leor, relying on Va. Code Ann. § 13.1-1021.1, 1024(J), argues
that there was no diversity between the parties because he was
the CEO of a Virginia limited liability company (“LLC”) and thus
all parties were from Virginia. This court reviews a district
court’s factual findings with respect to jurisdiction for clear
error. See Sligh v. Doe, 596 F.2d 1169, 1171 & 1171 n.9 (4th
Cir. 1979) (reviewing district court’s finding of jurisdictional
fact that parties had diversity of citizenship under the clearly
erroneous standard of review and describing the applicability of
such standard as plain). Our review of the Virginia law reveals
no reversible error by the district court. Moreover, Leor has
arguably waived this issue, by failing to provide the relevant
transcripts, because the district court previously rejected his
jurisdictional arguments in its February 19, 2015 order. The
February 19 order specifically denied Leor’s motion to dismiss
for lack of jurisdiction relying on “the reasons stated in open
court on February 12.” (E.R. 360).
In issue 5 Leor, who lives in Thailand, questions the
court’s personal jurisdiction over him via email. As applied to
this case, Fed. R. Civ. P. 4(f)(3) allows for service upon
individuals in a foreign country by other means not prohibited
by international agreement as may be directed by the court.
Rule 4(f) does not denote any hierarchy or preference for one
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method of service over another. Rio Props., Inc. v. Rio Int’l
Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). The only
limitations on Rule 4(f)(3) are that the means of service must
be directed by the court and must not be prohibited by
international agreement. Id. “Service of process under Rule
4(f)(3) is neither a ‘last resort’ nor ‘extraordinary relief.’
It is merely one means among several which enables service of
process on an international defendant.” Id. (internal citation
omitted).
A court is afforded wide discretion in ordering service of
process under Rule 4(f)(3), which “provides the Court with . . .
flexibility and discretion . . . empowering courts to fit the
manner of service utilized to the facts and circumstances of the
particular case.” In re Int’l Telemedia Assocs., Inc., 245 B.R.
713, 719 (Bankr. N.D. Ga. 2000) (granting Rule 4(f)(3) motion
approving service to defendant’s last-known email address). In
order to fulfill due process requirements under Rule 4(f)(3), a
court must approve a method of service that is “reasonably
calculated under all the circumstances” to give notice to
defendant. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950).
In its December 24 order, the district court granted
Enovative permission to serve Leor by electronic mail under Rule
4(f)(3), finding that: the service complied with the
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constitutional and due process notice requirements under
Mullane; Leor had left the United States and moved to Thailand;
Enovative had searched diligently, yet unsuccessfully, for
Leor’s mailing address; and that Leor had exhibited a
willingness to communicate with Enovative by electronic mail.
(E.R. 167-68). The court found that alternative service by
electronic mail was not prohibited by any international
agreement, including Thailand, and thus granted Enovative’s
motion for alternative service. (E.R. 168). We find no abuse
in the district court’s finding that it had personal
jurisdiction over Leor via email. See Rule 4(f)(3); In re Int’l
Telemedia Assocs., Inc., 245 B.R. at 719.
In issue 6 Leor asserts that injunctive relief was
unnecessary because all the relief in the complaint could be
quantified with damages. We find no reversible error in the
district court’s decision to grant a preliminary injunction. E.
Tenn. Natural Gas Co. v. Sage, 361 F.3d 808, 828 (4th Cir. 2004)
(noting that factual determinations are reviewed for clear error
and legal conclusions de novo). At the time that Enovative
moved for preliminary injunctive relief, Leor was in a position
to further damage its reputation vis-à-vis its customers and to
further interfere with its business relationships because he had
hijacked two of the websites the company used to sell its
products.
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For issue 7 Leor argues that this court disfavors attorney
fees in a preliminary hearing, questions the accuracy of the
$1,000 per day fine, and why the fines are paid to the United
States. This claim is arguably waived due to Leor’s failure to
provide transcripts of the February 12 and 13 hearings because
the court granted Enovative’s motion for sanctions, civil
contempt, attorney’s fees, and costs for “reasons discussed in
open court.” (E.R. 361). See Fed. R. App. P. 10(b)(2); 4th
Cir. R. 10(c)(1). Moreover, the district court applied the
correct law, relying on In re Gen. Motors Corp., 61 F.3d 256,
258 (4th Cir. 1995), and found it had the authority to impose
sanctions for civil contempt to coerce Leor’s obedience with
that order and to compensate Enovative for losses because of
Leor’s failure to follow the court’s rulings. (E.R. 361).
Also, the Supreme Court has allowed daily fines to coerce
litigants into compliance. See generally Int’l Union v.
Bagwell, 512 U.S. 821, 829 (1994). Thus, this claim also lacks
merit.
In issue 11 Leor alleges that the district court erred by
denying him permission to file electronically. Leor has failed,
however, to show entitlement to file electronically in the
district court and therefore has shown no reversible error on
appeal. Thus, this claim fails.
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Accordingly, while we grant leave to proceed in forma
pauperis, we affirm for the above reasons and for those stated
by the district court. Enovative Techs., LLC v. Leor, No. 1:14-
cv-03956-JKB (D. Md. Dec. 18, 2014 & Jan. 6, 2015). We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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