1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 FACEBOOK, INC., A DELAWARE CASE NO. 21-cv-03036-YGR CORPORATION, AND GUCCI AMERICA, 9 INC., A NEW YORK CORPORATION AMENDED ORDER GRANTING MOTION TO 10 Plaintiffs, SERVE DEFENDANT BY EMAIL 11 vs. Re: Dkt. Nos. 15 and 18

12 NATALIA KOKHTENKO,

13 Defendant.

14 Plaintiffs Facebook, Inc. (“Facebook”) and Gucci America, Inc. (“Gucci”) (collectively, 15 “Plaintiffs”) bring this complaint against Defendant Natalia Kokhtenko (“Defendant”). Plaintiffs 16 assert six causes of action based on defendant’s sell of counterfeit Gucci products online: (1) 17 counterfeiting under

(1); (2) trademark infringement under

(1); 18 (3) federal unfair competition under

(a); (4) unfair competition in violation of 19

et seq.; (5) common law unfair competition; and (6) breach of 20 contract under California law. (Dkt. No. 1.) (“Compl.”) 21 Now before the Court is plaintiffs’ motion for leave to serve defendant by email at the 22 email addresses she used in connection with her online businesses. (Dkt. No. 15.) 23 Having carefully reviewed the record, the papers submitted on the motion, and for the 24 reasons set forth more fully below, the Court GRANTS plaintiffs’ motion to serve defendant by 25 email.1 26 1 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court 27 finds this motion appropriate for decision without oral argument. Accordingly, the Court 1 I. RELEVANT BACKGROUND 2 The complaint alleges the following: 3 Since at least April 2020 and continuing until at least April 2021, defendant used social 4 media sites, Facebook and Instagram, to operate an international online business, where defendant 5 trafficked illegal counterfeit Gucci products and sold them online. Facebook has previously 6 disabled defendant’s accounts and removed posts for promoting the sale of counterfeit goods in 7 violation of Facebook’s and Instagram’s terms and policies. Despite Facebook’s efforts, 8 defendant continued to use Facebook and Instagram for illegal purposes. 9 Facebook brings this action to stop defendant’s ongoing violation of Facebook’s and 10 Instagram’s terms and policies. Gucci brings this action to stop defendant from continuing to use 11 its trademark for counterfeiting. 12 II. LEGAL STANDARD 13 Rule 4(f)(3) of the Federal Rules of Civil Procedure provides that “an individual . . . may 14 be served at a place not within any judicial district of the United States . . . by other means not 15 prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). It is left “to 16 the sound discretion of the district court the task of determining when the particularities and 17 necessities of a given case require alternate service of process under Rule 4(f)(3).” Rio Properties, 18 Inc. v. Rio Int’l Interlink,

(9th Cir. 2002). 19 While Russia is a signatory to the Hague Convention, Russia has suspended all judicial 20 cooperation with the United States in civil and commercial matters. See Nuance Commc'ns, Inc. v. 21 Abbyy Software House,

, 1237–38 (Fed. Cir. 2010).2 Additionally, Russia does not 22 permit service of documents by mail. See The Hague Conf. on Priv. Int’l L., the Convention of 15 23 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or 24 Commercial Matters, Russian Federation, Declarations & Reservations, https://www.hcch.net/en/ 25 2 See also U.S. Dep't of State, Bureau of Consular Affairs, Judicial Assistance Country 26 Information (Nov. 15, 2013), https://travel.state.gov/content/travel/en/legal/Judicial-Assistance- Country-Information/RussianFederation.html (last visited July 18, 2021) (“In July 2003, Russia 27 unilaterally suspended all judicial cooperation with the United States in civil and commercial 1 instruments/ conventions/status-table/notifications/?csid=418&disp=resdn (last visited July 18, 2 2021) (“Service of documents by methods listed in Article 10 of the Convention is not permitted 3 in the Russian Federation.”); see also ThermoLife Int’l, LLC v. Werteks Closed Stock, No. CV 19- 4 09671 PA (Ex),

, at *2 (C.D. Cal. Apr. 14, 2020); AMTO, LLC v. Bedford Asset 5 Mgmt., LLC, No. 14-CV-9913,

, at *7 (S.D.N.Y. June 1, 2015) (“[B]efore [its] 6 unilateral suspension, Russia objected to Article 10 of the Hague Convention, and Russia’s failure 7 to abide by the Convention . . . does not change the fact that Russia does not agree to service by 8 mail.”). 9 A. Analysis 10 1. Proposed Method of Service is Not Prohibited by International Agreement 11 While Russian prohibits service via mail, the Court is not aware of any international 12 agreement that prohibits service by email. Indeed, courts in this district have allowed plaintiffs to 13 serve summons and complaints by email to Russian parties. See ThermoLife Int’l, LLC,

6743586, at *2; LionHead Glob. No. 2, LLC v. Todd Reed, Inc., No. CV 19-7903 PA (AFMx), 15

, at *3 (C.D. Cal. July 7, 2020); Epic Games, Inc. v. Mendes, No. 17-CV- 16 06223-LB,

, at *2 (N.D. Cal. Jan. 29, 2018); Wilens v. Automattic Inc., No. 14- 17 CV-02419-LB,

, at *5 (N.D. Cal. Feb. 5, 2015). The Court finds that service by 18 email is particularly appropriate here, where plaintiffs have limited means to serve defendant 19 outside of personal service. Accordingly, the Court finds that service on defendant via email is 20 appropriate and not prohibited by international agreement. 21 2. Proposed Methods of Service are Reasonably Calculated to Provide 22 Defendant with Notice of this Action 23 Having found that service by email to Russia is not prohibited under an international 24 agreement, the Court next addresses whether email is reasonably calculated to provide defendant 25 with notice of the pending action. Plaintiffs have identified seven email addresses that defendant 26 uses in connection with her online businesses: (1) [email protected]; (2) 27 [email protected]; (3) [email protected]; (4) [email protected]; (5) 1 Andrew Herter (“Herter Decl.”), J 5.); (Declaration of Caroline Y. Barbee (“Barbee Decl.”), JJ] 2- 2 || 4.) After Facebook deactivated defendant’s Facebook and Instagram accounts for violation of the 3 terms and policies, defendant submitted appeals listing the first four email addresses listed above. 4 (Herter Decl., 4] 5.) Defendant lists the last three emails on her online websites for her businesses. 5 (Barbee Decl., 2-4.) 6 Here, because defendant has provided plaintiffs with the first three emails in connection 7 with her appeals, the Court concludes that, under the circumstances, service by email to those 8 || email addresses is reasonably calculated to provide defendant of notice of the pending lawsuit. 9 The Court also finds service to the last three emails appropriate because those emails are being 10 || used in connection with defendant’s online businesses; it is more likely than not that someone is 11 monitoring those email addresses for new purchase orders. Moreover, plaintiffs’ voluntary 12 || translation of the relevant documents into Russia also ensures that defendant is provided with 5 13 adequate notice of this action. 14 Accordingly, in light of the foregoing analysis, the Court GRANTS the motion for leave to 3 15 effect alternative service as requested in the motion. a 16 IT Is SO ORDERED. 3 17 || Dated: August 3, 2021 pane Lag tol □□□□□ 8 ONNE GONZAFEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 19 20 21 22 23 24 25 26 27 28