Reflex Media, Inc. v. Doe No. 1 ( 2019 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 REFLEX MEDIA, INC., a Nevada Case No. 2:18-cv-02423-RFB-BNW Corporation 7 Plaintiff, ORDER 8 v. 9 AARON WALLACE, an individual, et al., 10 Defendant. 11 12 13 Presently before the Court is Plaintiff’s Motion to Permit Alternative Methods of Service 14 on Foreign Defendant (ECF No. 144), which was filed on May 10, 2019. Defendant Web 15 Presence, LLC responded on May 15, 2019 (ECF No. 146), and Plaintiff replied on May 22, 2019 16 (ECF No. 147). 17 I. BACKGROUND 18 This is a case about extortion. Plaintiff alleges that it operates several dating sites and that 19 defendants initiated a scheme to extort their users. Specifically, Plaintiff alleges that defendants’ 20 scheme goes like this: some defendants join one of plaintiff’s dating sites and pose as legitimate 21 members to gather the personal information of other users. This information is then posted to 22 another website where the users are accused of offering sex for money and/or associated with 23 child predation. The targeted users are then referred to a website where, for a fee, they can have 24 their personal information removed from the “extortion website.” (See ECF No. 84 (Second 25 Ameen. Compl.).) 26 As a result of this alleged scheme, Plaintiff filed suit in August of 2018. (See ECF No. 1.) 27 Plaintiff filed its First Amended Complaint in October 2018 (ECF No. 33) and its Second 1 now seeks to serve another defendant, Arman Ali d/b/a D4 Solutions BD (Ali), by alternative 2 means. 3 Plaintiff seeks to serve Ali, a defendant located in Bangladesh, by email and international 4 courier pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure. (ECF No. 144 at 1.) 5 Plaintiff argues in its opening brief that service is proper under Rule 4(f)(3) so long as it is (1) 6 ordered by the court; (2) not prohibited by international agreement; and (3) reasonably calculated, 7 under the circumstances, to apprise the party of the action. (Id. at 3.) Plaintiff argues that if the 8 court were to order service via email and international courier, these elements would be met. The 9 first element would obviously be met because the court would order service in this manner. The 10 second element would be met because there is no international agreement between Bangladesh 11 (where Ali resides) and the United States and thus no international agreement prohibiting service 12 via email and international courier. (Id.) The third element would be met because Plaintiff has a 13 physical address (the Target Physical Address) and two email addresses (faarman@gmail.com 14 and d4solutionsbd@gmail.com) for Ali and reason to believe that if service was affected at these 15 three addresses, Ali would receive actual notice of the litigation. (ECF No. 144.) More 16 specifically, Plaintiff believes that the Target Physical Address it has for Ali is his business 17 address because Plaintiff hired a local process server who spoke with Ali and was told to serve his 18 partner, Md. Rahul Amin, at this address; the local process server did so and informally served 19 Md. Rahul Amin with Plaintiff’s initial complaint. (Id. at 4; ECF No. 147 at 5.) Plaintiff believes 20 that Ali would also receive notice from service via email at the two email addresses because (1) 21 Ali posted a video on YouTube showing him logging into an account for one of the email 22 addresses (faarman@gmail.com); and (2) for the other email address 23 (d4solutionsbd@gmail.com), Ali’s company has a banner with this email address on it. (ECF No. 24 144 at 2.) 25 A different defendant, Web Presence, opposes Plaintiff’s motion on multiple grounds. 26 First, Web Presence argues that Plaintiff’s motion should be denied because Plaintiff was not 27 diligent in attempting to serve Ali. (ECF No. 146 at 3.) Second, Web Presence argues that 1 required by Federal Rule of Civil Procedure 4(m). (Id. at 5.) Third, Web Presence argues that 2 allowing service on Ali now will delay litigation and this delay will prejudice Web Presence. (Id. 3 at 6.) Fourth, Web Presence argues that service at the three addresses Plaintiff has is not 4 reasonably calculated to apprise Ali of the pendency of this action. (Id. at 5) With regard to the 5 Target Physical Address, Web Presence argues that it looked the address up on Google Maps and 6 found that the address is associated with the middle of a street in rural Bangladesh. (Id. at 5.) 7 With regard to the email address shown in a YouTube video, Web Presence argues that the video 8 was posted over two years ago and there is no proof that Ali is the person logging into the account 9 (Id.) With regard to the other email address (that was taken off of a photo of a business banner), 10 Web Presence argues that Plaintiff has not laid a foundation for this photo and there is no 11 evidence that Ali ever used this email address. (Id.) Web Presence also asserts that there is no 12 evidence that Ali is currently using either email address. (Id. at 6.) 13 Plaintiff makes several arguments in its reply brief. First, it argues that Web Presence does 14 not have standing to assert arguments on behalf of unserved parties. (ECF No. 147 at 3.) Second, 15 it argues that it was not required to serve Ali within the 90 days required by Federal Rule of Civil 16 Procedure 4(m), as this rule explicitly does not apply to service in a foreign country. (Id. at 4.) 17 Third, Plaintiff argues that Web Presence’s suggestion that Plaintiff has not yet properly served 18 Ali is irrelevant, because Plaintiff has not and is not making this argument.1 (Id.) Fourth, Plaintiff 19 argues that the methods of service it proposes are reasonably calculated to give Ali actual notice 20 of this action. Plaintiff asserts that the Target Physical Address was confirmed by a local process 21 server who actually served Ali’s partner, per Ali’s instruction, at this address. (Id. at 5.) Plaintiff 22 also reiterates that there is evidence that Ali used one of the email addresses Plaintiff has 23 (faarman@gmail.com) and that the other email address (d4solutionsbd@gmail.com) was 24 photographed by the local process server on a banner and is on D4 Solutions’ Facebook page. (Id. 25 at 7.) 26 II. ANALYSIS 27 1 A. Standing 2 “[T]he ‘irreducible constitutional minimum’ of standing consists of three elements. The 3 plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged 4 conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” 5 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016) (internal citation 6 omitted). 7 Plaintiff does not address these elements in arguing that Web Presence does not have 8 standing to oppose its motion for alternative service on Ali. (See ECF No. 147 at 3.) Instead, 9 Plaintiff cites three non-controlling cases for the proposition that Web Presence does not have 10 standing to assert arguments on behalf of unserved parties. (Id.) Here, however, Web Presence 11 argues that if the court were to grant Plaintiff’s motion and allow service on Ali now, Web 12 Presence would be prejudiced because it would delay the case. (ECF No. 146 at 6.) Accordingly, 13 Web Presence is not asserting an argument solely for the benefit of another defendant. Rather, it 14 is asserting an argument for its own benefit. As such, and in the absence of additional authority 15 and analysis from the Plaintiff, the court cannot rule in its favor on standing. 16 B. Service Under Federal Rule of Civil Procedure 4(f)(3) 17 Federal Rule of Civil Procedure Rule 4(f) governs service on an individual in a foreign 18 country. Service under Rule 4(f)(3), as requested by the Plaintiff, is not a “last resort” or 19 “extraordinary relief.” Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1015 (9th Cir. 20 2002) (quotation omitted). “It is merely one means among several which enables service of 21 process on an international defendant.” Id. It is within the Court’s discretion to determine “when 22 the particularities and necessities of a given case require alternate service of process under Rule 23 4(f)(3).” Id. at 1016. 24 Rule 4(f)(3) permits service outside a judicial district of the United States “by other means 25 not prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). 26 Additionally, to establish that a particular method of service is appropriate, a plaintiff must show 27 that service is “reasonably calculated, under all the circumstances, to apprise the interested parties 1 (quotation omitted). Accordingly, service is proper under Rule 4(f)(3) so long as it is (1) ordered 2 by the court; (2) not prohibited by international agreement; and (3) reasonably calculated, under 3 the circumstances, to apprise the party of the action. 4 The court finds that alternative service under Rule 4(f)(3) is appropriate in this case. 5 The first element of Rule 4(f)(3) is met because the court is ordering alternative service on 6 Ali. 7 The second element of Rule 4(f)(3), the method of service requested is not prohibited by 8 international agreement, is also met. There is no international agreement between Bangladesh 9 (where Ali resides) and the United States and thus no international agreement prohibiting service 10 via email and international courier. See Service of Process, U.S. Department of State – Bureau of 11 Consumer Affairs (November 7, 2018), https://travel.state.gov/content/travel/en/legal/travel- 12 legal-considerations/internl-judicial-asst/Service-of-Process.html (last visited December 6, 2019) 13 (the United States is a party to two treaties on service of process, the Hague Service Convention 14 and the Inter-American Convention on Letters Rogatory and Additional Protocol); Service of 15 Process, U.S. Department of State – Bureau of Consumer Affairs (March 28, 2018), 16 https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country- 17 Information/Bangladesh.html (lasted visited December 6, 2019) (Bangladesh is not a party to 18 either of these two treaties). Web Presence does not dispute this fact. 19 The third element of Rule 4(f)(3), requiring that service be reasonably calculated to 20 apprise Ali of the litigation, will also be met by serving Ali or his partner, Md. Rahul Amin, at the 21 Target Physical Address. As discussed above, Plaintiff asserts that it hired a local process server 22 who spoke with Ali and was told to serve his partner, Md. Rahul Amin, at this address; the local 23 process server did so and informally served Md. Rahul Amin with Plaintiff’s initial complaint. 24 (ECF No. 144 at 4; ECF No. 147 at 5; see also ECF No. 144-5 (Proof of Service of Summons).) 25 While Web Presence may not have been able to locate the Target Physical Address on Google 26 Maps (or the address may not have shown an office building), Web Presence has not 27 demonstrated that Google Maps accurately shows the translated Target Physical Address as it 1 to suggest that their statements about hiring a local process server are inaccurate, the court 2 accepts these statements as true. Accordingly, the court is satisfied that serving Ali or his partner, 3 Md. Rahul Amin, at the Target Physical Address by international courier is reasonably calculated 4 to apprise Ali of the pendency of this action.2 5 Whether service via email is also reasonably calculated to apprise Ali of the pendency of 6 this action is a much closer call. Web Presence accurately points out that there is no evidence that 7 Plaintiff is still using these email addresses or ever personally used the business email address in 8 the past. However, because the court finds that service at the Target Physical address is 9 reasonably calculated to apprise Ali of this action, the court need not determine whether this is 10 also true for service via email. Nonetheless, the court will order Plaintiff to serve Ali at both 11 email addresses to provide additional chances for Ali to receive notice. Similarly, the court will 12 order Plaintiff to serve Ali through his and his company’s Facebook accounts, as Plaintiff offered 13 in its reply brief. (See ECF No. 147 at 8.) 14 Having determined that service under Rule 4(f)(3) is appropriate in this case, the court 15 now turns to Defendant’s other arguments regarding why Plaintiff’s motion should be denied. 16 First, Web Presence argues that Plaintiff’s motion should be denied because Plaintiff was 17 not diligent in attempting to serve Ali (ECF No. 146 at 3). However, diligent attempts at service 18 in another manner are not a prerequisite to a court permitting alternative service under Rule 19 4(f)(3). See Rio, 284 F.3d at 1015 (service under Rule 4(f)(3) is not a last resort or extraordinary 20 relief). 21 Second, Web Presence argues that Plaintiff’s motion should be denied because Plaintiff 22 did not effectuate service in 90 days as required by Federal Rule of Civil Procedure 4(m). (ECF 23 No. 146 at 5.) Rule 4(m) does contain a 90-day service requirement; however, Rule 4(m), by its 24 own terms, does not apply to service in a foreign country under Rule 4(f), as is the case here. Fed. 25 26 27 2 Indeed, it appears that Ali was already given notice of the pendency of this action through speaking with the local process server and having his partner accept informal service of the initial 1 || R. Civ. P. 44m) (“This subdivision (m) does not apply to service in a foreign country under Rule || 4....”). 3 Third, Web Presence argues that allowing service on Ali now will delay litigation and this 4 || delay will prejudice Web Presence. Ud. at 6.) However, Web Presence does not cite any authority 5 || for the proposition that this court can or should consider prejudice to another defendant when 6 || deciding whether to allow service by alternative means. See LR 7-2(d) (“The failure of an 7 || opposing party to file points and authorities in response to any motion . . . constitutes consent to 8 || the granting of the motion.”) 9 Accordingly, the court is not persuaded by Defendant’s arguments that service under Rule 10 || 4(f@) is inappropriate in this case. 11 |} 1. CONCLUSION 12 IT IS THEREFORE ORDERED that Plaintiff's Motion to Permit Alternative Methods of 13 || Service on Foreign Defendant (ECF No. 144) is GRANTED. 14 IT IS FURTHER ORDERED that Plaintiff must serve Arman Ali or Md. Rahul Amin by 15 || international courier at the Target Address (translated from Bangali to English as 130, Shah 16 || Mukhudum Chattrabab, Mehrchandi (Karaichala), Padma Residential, Boalia, Rajshahi) by 17 || January 6, 2020. 18 IT IS FURTHER ORDERED that Plaintiff must serve Arman Ali via email at 19 || faarman@ gmail.com and d4solutionsbd@ gmail.com by January 6, 2020. 20 IT IS FURTHER ORDERED that Plaintiff must serve Arman Ali at his and his 21 || company’s Facebook accounts (https://www.facebook.com/arman.ali.77582 and 22 || https://www.facebook.com/d4solutionsbd) by January 6, 2020. 23 24 || DATED: December 9, 2019 25 26 Kx pw Lea WER BRENDA WEKSLER 27 UNITED STATES MAGISTRATE JUDGE 28