Coy v. Lilith Games (Shanghai) Co., Ltd. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KEITH COY, Case No. 19-cv-08192-JD 8 Plaintiff, ORDER RE PLAINTIFF’S EX PARTE 9 v. MOTION FOR ALTERNATIVE SERVICE 10 LILITH GAMES (SHANGHAI) CO., LTD., et al., Re: Dkt. No. 18 11 Defendants. 12 13 In this putative consumer class action concerning the “Rise of Kingdoms” mobile 14 videogame and certain “micro-transactions” within the game, plaintiff alleges defendants engaged 15 in deceptive and misleading conduct. Dkt. No. 4. Plaintiff Keith Coy requests permission to serve 16 the complaint on defendants Lilith Games (Shanghai) Co., Ltd. and Shanghai Lilith Network 17 Technology Co., Ltd. through alternative means pursuant to Federal Rule of Civil Procedure 18 4(f)(3). Dkt. No. 18. Defendants, which are Chinese corporations headquartered in Shanghai, 19 China, Dkt. No. 4 ¶¶ 16-17, have not appeared in this action or filed any response to plaintiff’s 20 request. Plaintiff proposes to effectuate service by personally serving an attorney in Dallas, Texas, 21 who previously represented the defendants in two other lawsuits in this District, and by email 22 service to four separate email accounts related to defendants. Dkt. No. 19. The request is granted 23 in part. 24 DISCUSSION 25 Under Federal Rules of Civil Procedure 4(h)(2) and 4(f)(3), a foreign business entity may 26 be served in any manner directed by the Court that is not prohibited by international agreement. 27 See Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). “[C]ourt-directed 1 and it is in the district court’s “sound discretion” to “determin[e] when the particularities and 2 necessities of a given case require alternate service of process under Rule 4(f)(3).” Id. at 1015-16. 3 A wide variety of alternatives may be ordered under Rule 4(f)(3), but to comport with due process, 4 “the method of service crafted by the district court must be ‘reasonably calculated, under all the 5 circumstances, to apprise interested parties of the pendency of the action and afford them an 6 opportunity to present their objections.’” Id. at 1016 (citation omitted). 7 Coy appears to have expended a significant amount of time and effort in trying to serve 8 defendants. Dkt. Nos. 18, 20. Most significant are his efforts to reach out to Alisa Zheng. Before 9 filing the complaint, Coy’s counsel sent a “Notice of Intent to File Class Action Lawsuit” to 10 defendants pursuant to California Civil Code Section 1782, putting defendants on notice that a 11 lawsuit would be filed in 30 days’ time if defendants did not cease the unlawful business practices 12 as described in the letter. Dkt. No. 18-2.1 It appears that Alisa Zheng, writing as “the Legal 13 Counsel of Lilith Games,” responded to that letter by email, attaching a copy of the response that 14 was signed by her on November 14, 2019. Dkt. No. 18-3. The response states that “[w]e have 15 received your complaint about the ‘account sharing’ in our game product ‘Rise of Kingdoms,’” 16 attempts to address the “alleged violations of Lilith in your letter,” and directs plaintiff to “contact 17 our service group through in-game chat or sending email to service@lilithgames.com” in the event 18 he has more questions or suggestions. Id. It appears the email response was sent from the address 19 “alisazheng@lilithgames.com,” copying the addresses “jixiaojun@lilith.sh” and “hurui@lilith.sh.” 20 Id. 21 Plaintiff’s submissions on this motion show his counsel has emailed these three email 22 addresses multiple times, inquiring whether Ms. Zheng is “able to accept service of the complaint 23 on behalf of [her] client,” attaching a copy of the summons and complaint, and proposing to meet 24 and confer on a joint case management conference statement. Dkt. No. 18-4. Plaintiff has not 25 received a single response to these emails. Id., Dkt. No. 18-8. 26 27 1 The Court notes with some concern that the addresses used for defendants in the letter are not 1 Coy’s counsel has also corresponded with, and personally served, attorney Bart Rankin, 2 who previously served as counsel “for Defendants in two lawsuits in the Northern District of 3 California.” Dkt. Nos. 18-5, 18-7, 18-8. Coy makes no argument that those two lawsuits were 4 related to this one in subject matter. Coy further appears to have sent “via UPS Worldwide Saver 5 (Express)” a copy of the summons, complaint and other documents to defendants at the same 6 physical address used for the pre-filing notice letter. Dkt. No. 18-6. In addition, Coy retained 7 Rick Hamilton, the Director of International Services at ABC Legal Services, to “move forward 8 with service” pursuant to the Hague Convention. Dkt. No. 18-8. 9 A supplemental submission by Coy shows that the attempted service under the Hague 10 Convention was not successful. ABC Legal attempted to serve defendants at an address in Hong 11 Kong “provided by Defendants on the ‘Developer Information’ page of the Google Play Store 12 (where consumers download the ROK game),” but there was no Lilith Games (Shanghai) Co., Ltd. 13 located at that address. Dkt. Nos. 20, 20-1, 20-2. It is not clear if Coy has made any attempts to 14 serve defendants in Shanghai pursuant to the Hague Convention, but Rick Hamilton’s declaration 15 states that the cost of effectuating service of process in mainland China is high (“a minimum of 16 $5,225 solely to translate the documents”) and the process is likely to be very lengthy. Dkt. No. 17 20-3 ¶¶ 9-11. There have been delays of years with the Chinese Central Authority, and “the 18 current estimated timeline to obtain a proof of service on any Chinese company in mainland China 19 under the Hague Convention is, at best, one year,” with timelines of “two to three years (or 20 perhaps even longer)” being quite normal. Id. ¶¶ 11-12. In the meantime, plaintiff asserts that 21 “dozens of putative class members who wish to participate in this case” have contacted plaintiff’s 22 counsel, and “[m]ost of these individuals claim to have been bamboozled out of thousands of 23 dollars, even tens of thousands of dollars.” Dkt. No. 20 at 2. The ROK game is popular, with 24 approximately 400,000 game downloads reported for July 2020. Id. 25 All of this establishes that “the district court’s intervention” on the issue of service is 26 appropriate in this case. Rio Props., 284 F.3d at 1016. The question is what method of alternate 27 service to order. To start, the Court denies plaintiff’s request for substitute service on attorney 1 lawsuit before [plaintiff’s counsel] called because he receives ‘a tickler’ anytime one of his clients 2 is named as a defendant in a lawsuit,” but that “he was not retained or authorized by defendant to 3 accept service of process for the present lawsuit.” Dkt. No. 18-8 ¶ 7. Although Coy tries to make 4 much of the fact that attorney Rankin was already aware of the lawsuit, his knowledge is neither 5 here nor there. He has not been retained by defendants for this case or acted on defendants’ behalf 6 in any way in connection with this dispute, and the Court simply does not have a sufficient basis to 7 conclude that personal service on attorney Rankin would be “reasonably calculated . . . to apprise 8 [defendants] of the pendency of the action and afford them an opportunity to present their 9 objections.” Rio Props., 284 F.3d at 1016. This conclusion is bolstered by examining the facts of 10 other cases in which substitute service on an attorney was permitted. For example, in Xilinx, Inc. 11 v. Godo Kaisha IP Bridge 1, 246 F. Supp. 3d 1260, 1262-64 (N.D. Cal. 2017), alternate service 12 was “ordered on [defendant’s] counsel of record in [that] case and on [an] attorney” who had 13 contacted plaintiff about defendant’s “infringement allegations and handled an extended period of 14 pre-suit discussions about a deal to avoid litigation.” In contrast, attorney Rankin has no 15 demonstrated ties to defendants for this case. 16 Alisa Zheng, who wrote to plaintiff’s counsel as “Legal Counsel of Lilith Games” about 17 the very allegations in this case, is a much more appropriate person for alternate service. Plaintiff 18 has proposed to serve her by email. But plaintiff, while alluding to China’s status as a signatory to 19 the Hague Convention, has not fully addressed how the proposed email service is likely to be 20 viewed under the Convention. The Court has found in other contexts, however, that the Hague 21 Convention is not a bar to alternate methods of service. Xilinx, 246 F. Supp. 3d at 1264. The 22 Court will consequently authorize alternative service of process by email to 23 (1) “alisazheng@lilithgames.com”; (2) the two email addresses Ms. Zheng copied, i.e., 24 “jixiaojun@lilith.sh” and “hurui@lilith.sh”; and (3) the email address to which she referred 25 plaintiff, “service@lilithgames.com.” To be clear, this alternate email service authorization is 26 subject to a motion to quash service in the event defendants have good cause to contend that email 27 service in China is prohibited by the Hague Convention or any other international agreement. Rio 1 CONCLUSION 2 Email service as described above is authorized as an alternate method of serving the two 3 foreign defendants in this case, pursuant to Federal Rule of Civil Procedure 4(f)(3). The emails 4 || plaintiff previously sent were not authorized by court order and cannot be authorized retroactively. 5 || Plaintiff consequently directed to newly serve defendants consistent with this order and to file a 6 || proof of service on the docket. This order should also be served on defendants at those same 7 email addresses. 8 The case management conference that was set for September 10, 2020, is vacated and will 9 || be re-set once defendants have appeared. The case will be administratively closed in the interim. 10 IT IS SO ORDERED. 11 Dated: September 9, 2020 12 13 JAMESPONATO 14 United tates District Judge 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28