United States District Court, D. Nevada
ORDER (DOCKET NOS. 12, 14)
J. KOPPE, United States Magistrate Judge
before the Court is Plaintiffs' motion for alternative
service on Defendant Shad Applegate, also known as Shad
Cottelli. Docket No. 12; see also Docket No. 14
(motion filed under seal). Plaintiffs request a court order
for service by email based on their investigations into
Defendant Cottelli's whereabouts, which have proven
unsuccessful. See generally Docket Nos. 12, 14. For
the reasons discussed below, the Court
GRANTS Plaintiffs' motion. Id.
4(f) permits alternative service on an individual within a
foreign country. Although service may be attempted in
accordance with international agreements or the foreign
country's service laws, the Court has discretion to order
service by “means not prohibited by international
agreement.” Fed.R.Civ.P. 4(f)(3). This discretion is
not a last resort nor must service have previously been
attempted using the methods proscribed by Fed.R.Civ.P.
4(f)(1) and 4(f)(2). Rio Props., Inc. v. Rio Int'l
Interlink, 294 F.3d 1007, 1015 (9th Cir. 2002).
exercising its discretion, the Court determines if the
proposed method is prohibited by any international agreements
and ensures that the method satisfies due process. See
SEC v. Banc De Binary, 2014 U.S. Dist. LEXIS 26730, at
*3-4 (D. Nev. Mar. 3, 2014). Due process requires that the
method of service be (1) reasonably calculated to apprise the
defendant of the action and (2) afford the defendant an
opportunity to present his objections. Mullane v. Vent.
Hanover Bank & Trust Co., 339 U.S. 306, 314-315
(1950); see also Rio Props., Inc., 294 F.3d at
1016-1017; see e.g., Facebook, Inc. v. Banana
Ads, LLC, 2012 U.S. Dist. LEXIS 42160, at *4-5 (D. Nev.
Mar. 27, 2012).
Court then determines if service by email is proper by
looking to the circumstances of the attempts of service and
balancing any limitations of service by email with the
benefits. See Liberty Media Holdings, LLC v.
Letyagin, 2012 U.S. Dist. LEXIS 80326, at *4 (D. Nev.
June 11, 2012). Service by email is proper when the defendant
is unreachable by other means or does not have a known
physical address. See Rio Props., Inc., 294 F.3d at
1017. In such a situation, email is usually considered
“the method most likely to reach the defendant.”
Neumont Univ., LLC v. Nickles, 304 F.R.D. 594 (D.
Nev. 2015) (quoting Rio Props., Inc., 294 F.3d at
1017)). Relevant circumstances include: (1) whether the
claims at issue arise from the defendant's engagement in
an Internet-business; (2) the degree of the defendant's
reliance on emails as a means of communicating and conducting
business, and (3) prior attempts of service made by mail,
telephone, or other methods. See Facebook, Inc.,
2012 U.S. Dist. LEXIS 42160, at *4-9.
this case was initiated on January 9, 2018, Plaintiff Federal
Trade Commission (“FTC”) has been attempting to
locate Defendant Cottelli's whereabouts since as early as
August 2016. See Docket Nos. 1, 12-2 at 4, 14-2 at
4. In these two and one-half years, Plaintiff FTC's
investigators have traced Defendant Cottelli from Las Vegas
and Henderson, Nevada, to Cape Town, South Africa and the
United Kingdom. See generally, Docket Nos. 12, 14.
The earliest attempt was on August 17, 2016, when Plaintiff
FTC served a civil investigative demand on Defendant Cottelli
at his only known physical address at 6130 W. Flamingo Rd.
#732, Las Vegas. Docket Nos. 12-2 at 4, 14-2 at 4. This
location, however, was merely a commercial mail receiving
agency, and Defendant Cottelli never responded to the demand.
Docket Nos. 12 at 6, 14 at 6.
Prohibition by International Agreements
submit that, because Defendant Cottelli's physical
location is unknown, it cannot be determined if an
international agreement applies. Id. at n.4. The
Court may nonetheless order service by email when a
defendant's country of location is unknown as a result of
the defendant evading service. See Neumont Univ.,
LLC, 304 F.R.D. at 600 (ordering service by email where
the defendant appeared to have been “actively
concealing his location to evade service of process, ”
which made it “impossible” for the court
“to determine whether email service would be
inconsistent with an international agreement.”).
instant case, Plaintiffs submit that Defendant Cottelli is
likely evading service of process. Docket Nos. 12 at 8-9, 14
at 9-10. For example, Plaintiffs submit that they have
emailed Defendant Cottelli using two email addresses known to
be used by him for business communications; although no
response was received, the emails did not bounce back as
undeliverable. See e.g., Toyo Tire & Rubber
Co., Ltd. v. CIA Whell Grp., 2016 U.S. Dist. LEXIS
43128, at *8-9 (C.D. Cal. Mar. 25, 2016) (finding that an
email is presumed delivered when it is not returned as
undeliverable). Plaintiffs further submit examples of
Defendant Cottelli's past elusive behavior in supplying
false contact information and addresses, as well as his
change of name. Docket Nos. 12 at 9, 14 at 9-10. The Court
finds that Defendant Cottelli's current and relevant past
behavior, in conjunction with the numerous attempts to locate
him (see infra Section II(B)(iv)), are indicative of
a defendant who is actively evading process. Therefore,
Defendant's actions have made it impossible for the Court
to determine whether an international agreement prohibits
service by email.
Process and Proper Service
threshold matter, service by email is permitted as an
alternative method of service under Fed.R.Civ.P. 4(f) that
satisfies the due process requirements. See Rio Props.,
Inc., 294 F.3d at 1017-18. Accordingly, the Court
discusses only whether service by email is proper in the