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Reflex Media, Inc. v. Wallace

United States District Court, D. Nevada

December 9, 2019

REFLEX MEDIA, INC., a Nevada Corporation Plaintiff,
v.
AARON WALLACE, an individual, et al., Defendant.

          ORDER

          BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE.

         Presently before the Court is Plaintiff's Motion to Permit Alternative Methods of Service on Foreign Defendant (ECF No. 144), which was filed on May 10, 2019. Defendant Web Presence, LLC responded on May 15, 2019 (ECF No. 146), and Plaintiff replied on May 22, 2019 (ECF No. 147).

         I. BACKGROUND

         This is a case about extortion. Plaintiff alleges that it operates several dating sites and that defendants initiated a scheme to extort their users. Specifically, Plaintiff alleges that defendants' scheme goes like this: some defendants join one of plaintiff's dating sites and pose as legitimate members to gather the personal information of other users. This information is then posted to another website where the users are accused of offering sex for money and/or associated with child predation. The targeted users are then referred to a website where, for a fee, they can have their personal information removed from the “extortion website.” (See ECF No. 84 (Second Ameen. Compl.).)

         As a result of this alleged scheme, Plaintiff filed suit in August of 2018. (See ECF No. 1.) Plaintiff filed its First Amended Complaint in October 2018 (ECF No. 33) and its Second Amended Complaint in February of 2019. (ECF No. 84.) Plaintiff served multiple defendants and now seeks to serve another defendant, Arman Ali d/b/a D4 Solutions BD (Ali), by alternative means.

         Plaintiff seeks to serve Ali, a defendant located in Bangladesh, by email and international courier pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure. (ECF No. 144 at 1.) Plaintiff argues in its opening brief that service is proper under Rule 4(f)(3) so long as it is (1) ordered by the court; (2) not prohibited by international agreement; and (3) reasonably calculated, under the circumstances, to apprise the party of the action. (Id. at 3.) Plaintiff argues that if the court were to order service via email and international courier, these elements would be met. The first element would obviously be met because the court would order service in this manner. The second element would be met because there is no international agreement between Bangladesh (where Ali resides) and the United States and thus no international agreement prohibiting service via email and international courier. (Id.) The third element would be met because Plaintiff has a physical address (the Target Physical Address) and two email addresses (faarman@gmail.com and d4solutionsbd@gmail.com) for Ali and reason to believe that if service was affected at these three addresses, Ali would receive actual notice of the litigation. (ECF No. 144.) More specifically, Plaintiff believes that the Target Physical Address it has for Ali is his business address because Plaintiff hired a local process server who spoke with Ali and was told to serve his partner, Md. Rahul Amin, at this address; the local process server did so and informally served Md. Rahul Amin with Plaintiff's initial complaint. (Id. at 4; ECF No. 147 at 5.) Plaintiff believes that Ali would also receive notice from service via email at the two email addresses because (1) Ali posted a video on YouTube showing him logging into an account for one of the email addresses (faarman@gmail.com); and (2) for the other email address (d4solutionsbd@gmail.com), Ali's company has a banner with this email address on it. (ECF No. 144 at 2.)

         A different defendant, Web Presence, opposes Plaintiff's motion on multiple grounds. First, Web Presence argues that Plaintiff's motion should be denied because Plaintiff was not diligent in attempting to serve Ali. (ECF No. 146 at 3.) Second, Web Presence argues that Plaintiff's motion should be denied because Plaintiff did not effectuate service in 90 days as required by Federal Rule of Civil Procedure 4(m). (Id. at 5.) Third, Web Presence argues that allowing service on Ali now will delay litigation and this delay will prejudice Web Presence. (Id. at 6.) Fourth, Web Presence argues that service at the three addresses Plaintiff has is not reasonably calculated to apprise Ali of the pendency of this action. (Id. at 5) With regard to the Target Physical Address, Web Presence argues that it looked the address up on Google Maps and found that the address is associated with the middle of a street in rural Bangladesh. (Id. at 5.) With regard to the email address shown in a YouTube video, Web Presence argues that the video was posted over two years ago and there is no proof that Ali is the person logging into the account (Id.) With regard to the other email address (that was taken off of a photo of a business banner), Web Presence argues that Plaintiff has not laid a foundation for this photo and there is no evidence that Ali ever used this email address. (Id.) Web Presence also asserts that there is no evidence that Ali is currently using either email address. (Id. at 6.)

         Plaintiff makes several arguments in its reply brief. First, it argues that Web Presence does not have standing to assert arguments on behalf of unserved parties. (ECF No. 147 at 3.) Second, it argues that it was not required to serve Ali within the 90 days required by Federal Rule of Civil Procedure 4(m), as this rule explicitly does not apply to service in a foreign country. (Id. at 4.) Third, Plaintiff argues that Web Presence's suggestion that Plaintiff has not yet properly served Ali is irrelevant, because Plaintiff has not and is not making this argument.[1] (Id.) Fourth, Plaintiff argues that the methods of service it proposes are reasonably calculated to give Ali actual notice of this action. Plaintiff asserts that the Target Physical Address was confirmed by a local process server who actually served Ali's partner, per Ali's instruction, at this address. (Id. at 5.) Plaintiff also reiterates that there is evidence that Ali used one of the email addresses Plaintiff has (faarman@gmail.com) and that the other email address (d4solutionsbd@gmail.com) was photographed by the local process server on a banner and is on D4 Solutions' Facebook page. (Id. at 7.)

         II. ANALYSIS

         A. Standing

         “[T]he ‘irreducible constitutional minimum' of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016), as revised (May 24, 2016) (internal citation omitted).

         Plaintiff does not address these elements in arguing that Web Presence does not have standing to oppose its motion for alternative service on Ali. (See ECF No. 147 at 3.) Instead, Plaintiff cites three non-controlling cases for the proposition that Web Presence does not have standing to assert arguments on behalf of unserved parties. (Id.) Here, however, Web Presence argues that if the court were to grant Plaintiff's motion and allow service on Ali now, Web Presence would be prejudiced because it would delay the case. (ECF No. 146 at 6.) Accordingly, Web Presence is not asserting an argument solely for the benefit of another defendant. Rather, it is asserting an argument for its own benefit. As such, and in the absence of additional authority and analysis from the Plaintiff, the court cannot rule in its favor on standing.

         B. Service Under Federal Rule of Civil Procedure 4(f)(3)

         Federal Rule of Civil Procedure Rule 4(f) governs service on an individual in a foreign country. Service under Rule 4(f)(3), as requested by the Plaintiff, is not a “last resort” or “extraordinary relief.” Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002) (quotation omitted). “It is merely one means among several which enables service of process on an international defendant.” Id. It is within the Court's discretion to determine ...


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