United States District Court for the Southern District of Florida, 2021

Yeti Coolers, LLC v. The Individuals, Business Entities, and Unincorporated Associations Identified on Schedule A

United States District Court for the Southern District of Florida · Decided September 29, 2021

Trial Court Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 21-cv-62008-BLOOM/Valle YETI COOLERS, LLC, Plaintiff, v. THE INDIVIDUALS, BUSINESS ENTITIES, AND UNINCORPORATED ASSOCIATIONS IDENTIFIED ON SCHEDULE A, Defendants. ______________________________________ SEALED ORDER GRANTING MOTION FOR ALTERNATE SERVICE THIS CAUSE is before the Court upon Plaintiff, YETI Coolers, LLC’s (“YETI” or “Plaintiff”), Ex Parte Motion for Order Authorizing Alternate Service of Process on Defendants Pursuant to Federal Rule of Civil Procedure 4(f)(3), ECF No. [12] (the “Motion”). In its Complaint, Plaintiff sets forth claims against Defendants for (1) trademark counterfeiting and infringement, (2) false designation of origin, (3) cybersquatting, (4) common law unfair competition, and (5) common law trademark infringement. See ECF No. [1]. More specifically, Plaintiff alleges that Defendants promote, sell, offer for sale, and distribute goods bearing counterfeits and confusingly similar imitations of Plaintiff’s trademarks, thereby infringing Plaintiff’s trademarks. Id. Plaintiff contends that Defendants are accomplishing these infringement activities by operating commercial Internet websites under their respective domain names identified on Schedule “A” hereto (the “Subject Domain Names”).

Plaintiff contends that Defendants operate via the Internet and utilize electronic means as reliable forms of contact. See ECF No. [12], at 3-6. According to Plaintiff, it has good cause to believe that Defendants are all residents of the People’s Republic of China (“China”), the Republic of Indonesia (“Indonesia”), United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), or other foreign jurisdictions, and/or redistribute products from sources in those locations. Id. at 13. Plaintiff further contends that Defendants have at least one operational form of electronic contact, demonstrating that this means of contact is not just effective, but the most reliable means of communicating with Defendants. Id. at 3-6. Consequently, Plaintiff asserts that e-mail, including onsite contact, is the most reliable means of providing Defendants with notice of this action. Id. at 9-11.

Rule 4(f)(3) allows a district court to order an alternate method for service to be effected upon foreign defendants, provided that it is not prohibited by international agreement, and is reasonably calculated to give notice to the defendants. See Brookshire Bros. v. Chiquita Brands Int’l, Inc., No. 05-CIV-21962, 2007 WL 1577771, at *2 (S.D. Fla. May 31, 2007) (“[D]istrict courts have found broad discretion under Rule 4(f)(3) to authorize other methods of service that are consistent with due process and are not prohibited by international agreements.”) (citing Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 921, 927 (11th Cir. 2003)); Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). The plain language of Rule 4(f)(3) reflects that the decision to issue an order allowing alternate means of service lies within the discretion of the district court.

Service by e-mail is not prohibited under international agreement in this case. Although the United States and China are signatories to the Hague Convention on the Service Abroad of Extra-Judicial Documents in Civil and Commercial Matters (the “Hague Convention”),1 the Hague Convention does not specifically preclude service of process via e-mail or by posting on a designated website. Where a signatory nation has objected to the alternative means of service Indonesia is not a signatory to the Hague Convention. See ECF No. [12] at 13. provided by the Hague Convention, that objection is expressly limited to those means and does not represent an objection to other forms of service, such e-mail or website posting.2 Stat Med.

Devices, Inc. v. HTL-Strefa, Inc., No. 15-cv-20590-FAM, 2015 U.S. Dist. LEXIS 122000 (S.D. Fla. Sept. 14, 2015) (noting that an objection to the alternative forms of service set forth in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 658 U.N.T.S. 16, is limited to the specific forms of service objected to). A court acting under Rule 4(f)(3), therefore, remains free to order alternative means of service where a signatory nation has not expressly objected to those means. See Gurung v. Malhotra, 279 F.R.D. 215, 219 (S.D.N.Y. 2011). Accordingly, service by e-mail or internet communication does not violate an international agreement.

Rule 4(f)(3) was “adopted in order to provide flexibility and discretion to the federal courts in dealing with questions of alternative methods of service of process in foreign countries.” In re Int’l Telemedia Assoc., Inc., 245 B.R. 713, 719 (N.D. Ga. 2000). What constitutes appropriate service varies depending on the circumstances of the case and turns on the court’s determination of whether the alternative method is reasonably calculated to apprise the parties of the pendency of the action and afford them an opportunity to present their objections. Philip Morris USA, Inc. v. Veles Ltd., No. 06 CV 2988 (GBD), 2007 WL 725412, at *2 (S.D.N.Y. Mar. 12, 2007).

Here, the Court finds that Plaintiff has shown good cause for leave to allow service of the Summonses, Complaint, and all future filings in this matter upon each Defendant via e-mail and via posting on a designated website.

Accordingly, after careful review of the Motion, the evidence submitted in support of the China and the United Kingdom have not expressly objected to service via e-mail or website posting. See ECF No. [12-2].

Case No. 21-cv-62008-BLOOM/Valle Motion, and the applicable law, it is ORDERED AND ADJUDGED as follows: 1. Plaintiff's Motion, ECF No. [12], is GRANTED.

2. Plaintiff shall serve the Summonses, Complaint, and all filings in this matter upon Defendants via e-mail by providing the address to Plaintiff's designated serving notice website to Defendants via the e-mail addresses provided by each Defendant as part of the domain registration records for each of their respective domain names, including service via registrar, or directly on the Internet website operating under each of their respective corresponding domain names, including customer service e-mail addresses and onsite contact forms. See attached Schedule “A” which lists Defendants by Defendant number, Subject Domain Name, and associated means of contact.

3. Plaintiff shall serve Defendants via website posting by posting a copy of the Summonses, Complaint, and all filings in this matter on Plaintiff's designated serving notice website appearing at the URL □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ html.

DONE AND ORDERED in Chambers at Miami, Florida, on September 28, 2021.

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