WhatsApp Inc. v. NSO Group Technologies Limited ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WHATSAPP INC., et al., Case No. 19-cv-07123-PJH 8 Plaintiffs, 9 v. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO SET 10 NSO GROUP TECHNOLOGIES ASIDE DEFAULT JUDGMENT; LIMITED, et al., DENYING MOTION TO AUTHORIZE 11 ALTERNATIVE SERVICE Defendants. 12 Re: Dkt. Nos. 24, 29 13 14 Before the court is defendants NSO Group Technologies Limited (“NSO”) and Q 15 Cyber Technologies Limited’s (“Q Cyber” and together with NSO, “defendants”) motion to 16 set aside default. Dkt. 24. Also before the court is WhatsApp Inc. (“WhatsApp”) and 17 Facebook, Inc.’s (“Facebook” and together with WhatsApp, “plaintiffs”) cross-motion for 18 alternative service. Dkt. 29. The matters are fully briefed and suitable for decision 19 without oral argument. Accordingly, the hearing set for April 16, 2020 is VACATED. 20 Having read the parties’ papers and carefully considered their arguments and the 21 relevant legal authority, and good cause appearing, the court hereby rules as follows. 22 On October 29, 2019, plaintiffs filed a complaint alleging: (1) violation of the 23 Computer Fraud and Abuse Act, 18 U.S.C. § 1030; (2) violation of the Comprehensive 24 Computer Data Access and Fraud Act, Cal. Penal Code § 502; (3) breach of contract and 25 (4) trespass to chattels. Dkt. 1. In the intervening months, plaintiffs attempted service on 26 defendants, which are Israeli entities, through a variety of means and pursuant to the 27 Hague Convention. Plaintiffs believed that they effected service at defendants’ office in 1 20 at 2. Accordingly, on February 27, 2020, plaintiffs filed an application for default (Dkt. 2 20), and the Clerk of Court entered default on March 2, 2020, (Dkt. 22). 3 On March 6, 2020, defendants filed the present motion1 arguing that service under 4 the Hague Convention was improper and requesting the court to enlarge time to respond 5 to the pleadings by 120 days. Dkt. 24. Plaintiffs have filed an opposition to defendants’ 6 motion in which they state that do not oppose defendants’ request to vacate the default 7 entry. Dkt. 29 at 5–6. Plaintiffs’ filing also included a cross-motion requesting alternative 8 service under Federal Rule of Civil Procedure 4(f)(3). Id. at 15. Subsequent events have 9 overtaken plaintiffs’ cross-motion because on March 12, 2020, plaintiffs re-served 10 defendants in accordance with the Hague Convention and on March 16, 2020, the Israeli 11 Central Authority issued formal certificates showing service to be complete. Dkt. 33. The 12 parties agree that the cross-motion for alternative service is no longer necessary (and 13 plaintiffs move to withdraw that motion). Id.; Dkt. 40. 14 To summarize these events, the parties agree that the entry of default should be 15 set aside. They also agree that service has been properly effected, but dispute whether 16 service is effective as of March 12, 2020 or March 16, 2020.2 According to the 17 certificates of service filed by plaintiffs, service was effective on March 12, 2020. Dkts. 18 32-1; 32-2. Defendants did not waive service and their response to the pleadings is due 19 within 21 days of March 12, 2020. Fed. R. Civ. P. 12(a)(1); 12(b). Defendants also 20 1 Defendants have also filed a motion for sanctions. Dkt. 29. The court does not address 21 the pending motion for sanctions in this order. 2 The parties do not agree on whether defendants were served on March 12th (when 22 plaintiffs represent that defendants received the pleadings and summons) or March 16th (when the Israeli Central Authority issued a formal certificate of service). Federal Rule of 23 Civil Procedure 12(a)(1) generally provides that “[a] defendant must serve an answer: (i) within 21 days after being served with the summons and complaint” unless defendant has 24 timely waived service under Rule 4(d). Here, the certificates of service for both defendants reflect that they received the documents constituting service on March 12, 25 2020. Dkts. 32-1; 32-2. This constituted service on defendants pursuant to Federal Rules of Civil Procedure 4(h)(2) and 4(f)(1), while the certificate of service was the means 26 by which plaintiffs proved service pursuant to Federal Rule of Civil Procedure 4(l)(2)(A). See Ackourey v. Noblehouse Custom Tailors, No. 13-cv-2319, 2013 WL 60601365, at *4 27 (E.D. Penn. Nov. 15, 2013) (“Typically, proof of service under the Convention comes in 1 represent that the parties are conferring on a reasonable response date to the pleadings. 2 Dkt. 40 at 1 n.1. The parties may file an appropriate stipulation according to the Civil 3 Local Rules; however, the court is not inclined to extend defendants’ time to respond by 4 120 days. 5 For the foregoing reasons, the court GRANTS defendants’ motion to set aside 6 default and DENIES defendants’ motion to enlarge time to respond. Dkt. 24. Because 7 plaintiffs have moved to withdraw their motion for alternative service, the court DENIES 8 plaintiffs’ motion for alternative service. Dkt. 29. 9 IT IS SO ORDERED. 10 Dated: March 25, 2020 11 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27