Tann v. Namecheap Inc. ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 CRAIG TANN, ET AL., Case No.: 2:19-cv-00788-RFB-DJA 8 Plaintiffs, Order 9 v. 10 THECHEAP NAME, 11 Defendants. 12 Pending before the Court is Plaintiffs’ Motion to Deem Email Service Effective Process 13 Under Rule 4 as to Defendant (ECF No. 7), filed on August 27, 2019. 14 I. Background 15 Plaintiffs represent that they have been unable to serve Defendant via hand delivery or 16 international mail courier because the domain name for Defendant was registered using a fictitious 17 name and contact information. They attach a declaration of Plaintiffs’ counsel indicating that he 18 was unsuccessful at completing hand delivery or mail service and therefore, utilized a forensic 19 investigator to follow up on the email address registered for Defendant with Namecheap Inc. (ECF 20 No. 7, Exh. 1). Plaintiffs claim that Namecheap Inc. verified that they were able to communicate 21 with the registrant through the email address provided – fillbingenfillbingen@gmail.com and that 22 Namecheap Inc. requires a valid email address in order to register and maintain a domain name 23 through its service. Accordingly, Plaintiffs request that the Court deem an August 22, 2019 email 24 transmission of the Amended Complaint and Summons to email address 25 fillbingenfillbingen@gmail.com as effective service on Defendant. (ECF No. 7, Exh. 7) 26 II. Discussion 27 Under Federal Rule of Civil Procedure 4(f), “Unless federal law provides otherwise, an 28 individual . . . may be served at a place not within any judicial district of the United States: . . . (3) 1 by other means not prohibited by international agreement, as the court orders.” Although the Ninth 2 Circuit has condoned service by email when it was “the method of service most likely to reach” a 3 defendant, Plaintiffs missed a critical step that prevents validating the August 22, 2019 email to 4 fillbingenfillbingen@gmail.com as substituted service. Rio Properties, Inc. v. Rio Int’l Interlink, 5 284 F.3d 1007, 1017 (9th Cir.2002). Plaintiffs never obtained a court order authorizing service 6 via email before they sent the August 22, 2019 email. As the Ninth Circuit explained in 7 Brockmeyer v. May, 383 F.3d 798, 806 (9th Cir.2004), Plaintiffs “must obtain prior court approval 8 for the alternative method of serving process,” and failure obtain that prior approval is fatal to the 9 success of substituted service. Therefore, Plaintiffs’ request to deem the August 22, 2019 email 10 to fillbingenfillbingen@gmail.com to be effective service is denied. 11 However, Plaintiffs’ Motion provides sufficient grounds to permit substituted service by 12 email under FRCP 4(f)(3). It comports with due process and is reasonably calculated, under the 13 circumstances of this case, to apprise Defendant of the pendency of the action and afford it an 14 opportunity to present objections. Service by email has been approved as substituted service under 15 Rule 4(f)(3) when it is “the method of service most likely to reach” a defendant. Rio Properties, 16 at 1017. As long ago as 2002, the Ninth Circuit acknowledged that trial courts were authorizing 17 email as a form of substituted service under the rule and it approved email as a “constitutionally 18 acceptable” substituted method of service upon an “elusive international defendant, striving to 19 evade service of process” that helps “ensure the smooth functioning of our courts of law.” Id. 20 Here, Plaintiffs’ counsel’s Declaration (ECF No. 7, Exh. 1) has demonstrated that the facts and 21 circumstances of this case necessitate that this Court permit a substitute method of service of 22 process on Defendant and service by email is warranted. Therefore, the Court will provide 23 Plaintiffs with 10 days to effectuate service by this substituted method and file proof of this service. 24 25 26 27 28 1 III. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion to Deem Email Service 3 Effective Process Under Rule 4 as to Defendant (ECF No. 7) is denied in part and granted in 4 part as set forth above. Plaintiffs have 10 days to serve a copy of the Amended Complaint and 5 Summons on Defendant by email at fillbingenfillbingen@gmail.com and file proof of this service. 6 7 Dated: August 28, 2019. 8 ______________________________ Daniel J. Albregts 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28