Amazon.com Inc v. Danylchenko

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE AMAZON.COM, INC., et al., 9 Plaintiffs, Case No. C24-0824-JNW-SKV 10 v. ORDER GRANTING EX PARTE MOTION FOR ALTERNATIVE SERGII DANYLCHENKO, SERVICE 12 Defendant.

14 INTRODUCTION 15 Plaintiffs Amazon.com, Inc., Amazon.com Services, and Amazon Technologies, Inc. (collectively “Amazon”) filed an Ex Parte Motion for Alternative Service. Dkt. 14. Plaintiffs seek an order authorizing completion of service of process on Defendant Sergii Danylchenko by email. The Court held a status conference addressing the motion. Dkt. 21. Now, having considered the motion, all documents filed in support, the information provided by counsel at the status conference, and the balance of the record, the Court herein GRANTS Plaintiffs’ motion for the reasons set forth below.

22 BACKGROUND 23 This matter involves allegations of fraud, intentional interference with contractual relations, unjust enrichment and restitution, trademark infringement, and false designation of origin. Dkt. 1. Plaintiffs allege Defendant acted to circumvent Amazon’s approval and product authentication processes for restricted product categories in the Amazon.com store, and, specifically, submitted falsified documentation to Amazon on behalf of bad actors operating Amazon selling accounts. Id. 5 Plaintiffs conducted an investigation into Defendant, who provided services through his website, amz.expert.pro. Dkt. 15, ¶2. The investigation revealed Defendant is likely Ukrainian, but that he moved from the Ukraine and currently resides in or near Alanya, Turkey. Id., ¶3.

8 Amazon’s investigators have not been able to identify a current valid physical address for Defendant, but the information obtained provides support for the conclusion that Defendant is likely located in Turkey. Id. In addition, in investigating the alleged fraudulent scheme involved in this case, an Amazon investigator successfully conducted a “test buy” in which the investigator communicated with Defendant through the email address [email protected], and was provided a second email address, [email protected], for use in association with the test buy. Id.,¶4.

15 Plaintiffs now seek an order from the Court granting leave to serve Defendant via email through the email addresses associated with Defendant: [email protected] and [email protected]. They believe that these email addresses are currently active. They observe that, during the test buy, Defendant utilized [email protected] as his means of communication, and utilized [email protected] to submit fake documentation to Amazon.

20 Id., ¶5. Further investigation revealed [email protected] was used on over ninety occasions on behalf of various Amazon selling accounts that submitted documentation to Amazon in an effort to obtain approval to sell products in the Amazon store. Dkt. 16, ¶6. Plaintiffs also observe that, on September 6, 2024, they directed a test email to Defendant at both email addresses, apprising Defendant of this lawsuit and containing copies of the Complaint, civil cover sheet, and summons, and did not receive any error notices, bounce back messages, or other indications that the emails failed to deliver. Dkt. 15, ¶6. Plaintiffs seek to serve Defendant using RPost (www.rpost.com), an online service for service of process. Id., ¶7.

5 Plaintiffs, finally, submitted a supplemental declaration explaining that they are currently engaged in negotiations with an attorney who reached out to advise of his representation of Defendant for settlement purposes only. Dkt. 20. However, Defendant has not as yet agreed to waive service or to authorize counsel to accept service on his behalf. See id., ¶¶2-3. Nor has counsel provided an address for Defendant. Id. Plaintiffs assert that the fact Defendant had an attorney reach out on his behalf to discuss a potential settlement demonstrates he is already on notice of the lawsuit and that these additional facts underscore the reasonableness of allowing service on him by email. Id., ¶5. Plaintiffs also, at the status conference, advised that they continue to seek an Order allowing for alternative service given the absence of any agreement as to a waiver of service.

15 DISCUSSION 16 Federal Rule of Civil Procedure 4(f) permits service of process on individuals in foreign countries by: (1) internationally agreed means of service reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; (2) if there is no internationally agreed means, in accordance with the foreign country’s law; or (3) “by other means not prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). To obtain a court order under Rule 4(f)(3), a plaintiff must “demonstrate that the facts and circumstances of the present case necessitate[] the district court’s intervention.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002).

1 In addition to the requirements of Rule 4(f), “a method of service of process must also comport with constitutional notions of due process.” Id. “To meet this requirement, the method of service crafted by the district court must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” Id. at 1016-17 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).

7 A. Rule 4(f) 8 Plaintiffs assert their inability to locate a physical address for Defendant. See Dkt. 15.

9 Plaintiffs’ investigation and discovery efforts narrowed the likely location of Defendant to Turkey. Id. Turkey is a party to the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters. See https://www.hcch.net/en/ instruments/conventions/status-table/?cid=17 (last accessed September 24, 2024). However, the Hague Convention expressly “shall not apply where the address of the person to be served with the document is not known.” Hague Convention, T.I.A.S. No. 6638 (Feb. 10, 1969), 20 U.S.T.

15 361, 1969 WL 97765. Here, because they have been unable to locate any physical address for Defendant, Plaintiffs could not utilize methods authorized by the Hague Convention. Moreover, because the Convention does not apply, it does not bar service by email.

18 Whether or not the Hague Convention applies, federal courts have concluded that email service on individuals located in Turkey is not prohibited by the Hague Convention or by any other international agreement, and have authorized service by email under Rule 4(f)(3). See, e.g., Facebook, Inc. v. Sahinturk, C20-8153, 2021 WL 4295309, at *2-3 (N.D. Cal. Sept. 21, 2021); Makina v. Kimya Endustrisi A.S, C22-3933, 2022 WL 3018243, at *2-5 (S.D.N.Y. July 29, 2022) (also noting Turkey has not objected to service by email); Chanel, Inc. v. designerchanelgirl.com, C20-62447, 2020 WL 8226843, at *1-2 (S.D. Fla. Dec. 2, 2020) (same).

3 As discussed at the status conference, this case differs from other Amazon Counterfeit Enforcement Actions proceeding in this Court. See generally General Order 03-23. As related to the current motion, the Court notes that Plaintiffs failed to provide some information relevant to the Court’s determination. In particular, Plaintiffs failed to specify when they conducted the “test buy” or to provide more than minimal detail as to the “diligent efforts” undertaken to obtain a current valid physical address for Defendant. See Dkt. 15, ¶¶2-5. The Court nonetheless concludes that Plaintiffs have shown that they have attempted but failed to obtain a valid physical address for Defendant. Plaintiffs further show that, although some communications with counsel for Defendant have occurred, there has been no waiver of service of summons or acceptance of service by counsel on Defendant’s behalf. Plaintiffs therefore demonstrate the need for the Court’s intervention. The Court further finds that service by email is not prohibited by international agreement. Plaintiffs therefore show that an Order permitting service by email comports with Rule 4(f).

16 B. Due Process 17 The Court must also determine whether service of process on Defendant through email would comport with due process. That is, the Court must consider whether this method of service is “reasonably calculated, under all the circumstances,” to apprise Defendant of this action and afford Defendant the opportunity to object. Mullane, 339 U.S. at 314. As found by the Ninth Circuit, the decision to allow service by email lies within the district court’s discretion where the defendant has “structured its business such that it could be contacted only via its email address” and “designated its email address as its preferred contact information.” Rio Props., Inc., 284 F.3d at 1018 (emphasis in original).

3 Plaintiffs show that Defendant provided to Amazon investigators and repeatedly used as his primary means of communication for the alleged illicit scheme the email addresses [email protected] and [email protected]. See Dkts. 14-16. Plaintiffs also show that the addresses remain active, as demonstrated by a test buy conducted by Amazon investigators, through test emails sent successfully and with no indication of a failure to deliver, and the fact that, after the test emails, an attorney reached out to Plaintiffs’ counsel regarding this matter and advised that he represented Defendant for settlement purposes. See Dkts. 14-16, 20.

10 This Court has concluded that the due process requirement for alternative service by email is satisfied “when the plaintiff demonstrates that the email addresses at issue are valid and are successfully receiving messages.” Amazon.com Inc. v. KexleWaterFilters, C22-1120-JLR, 2023 WL 2017002, at *4 (W.D. Wash. Feb. 15, 2023). The Court has, accordingly, authorized service by email where plaintiffs identified email addresses defendants used for Amazon Selling Accounts and verified the addresses remained active, finding sufficient indicia that the defendants were likely to receive notice if served by email and due process concerns satisfied.

17 See, e.g., Amazon.com, Inc. v. Pengyu Bldg. Materials, No. C21-0358-JNW-SKV, 2023 WL 18 4131609, at *3-4 (W.D. Wash. June 22, 2023); KexleWaterFilters, 2023 WL 3902694, at *2 (W.D. Wash. May 31, 2023); Amazon.com Inc. v. Bamb Awns, No. C22-402-MLP, 2023 WL 20 2837076, at *3 (W.D. Wash. Apr. 7, 2023). Accord Bright Sols. for Dyslexia, Inc. v. Lee, C15- 1618, 2017 WL 10398818, at *7 (N.D. Cal. Dec. 20, 2017) (finding service by email proper “because Defendants structured their counterfeit business such that they could only be contacted by email[,]” the court authorized service by email, and the emails sent did not bounce back as undeliverable), report and recommendation adopted, 2018 WL 4927702 (N.D. Cal. Mar. 26, 2018). In contrast, where plaintiffs did not indicate whether they had attempted to contact any defendants using email addresses associated with Amazon Selling Accounts, nor represented the defendants had notice of the lawsuit, the Court denied service by email upon finding a failure to demonstrate the email addresses were still valid. KexleWaterFilters, 2023 WL 2017002, at *2, 4 (permitting plaintiffs to “renew their motion with evidence of recent communications to Defendants that demonstrates that service by email is a reliable method to provide Defendants with notice of the pendency of [the] action.”), renewed motion granted, KexleWaterFilters, 2023 9 WL 3902694, at *2. See also Amazon.com, Inc. v. Tian Ruiping, No. C21-0159-TL, 2022 WL 10 486267, at *3-5 (W.D. Wash. Feb. 17, 2022) (denying alternative service by email where plaintiffs had obtained physical addresses for defendants, but did not demonstrate the addresses were incorrect or inadequate for service, did not show any defendant was aware of the pending action, and did not indicate any attempts to contact defendants, including attempted communication via email, through Selling Accounts, or by any other means).

15 Plaintiffs here demonstrate that the email addresses used by Defendant served as the primary means of communication with Amazon and Amazon’s investigators and that the addresses remain active, as recently demonstrated by the fact that counsel for Defendant reached out to discuss settlement after delivery of the test emails. As argued by Plaintiffs, the evidence before the Court provides sufficient indicia that Defendant is likely to receive notice if served by email. The Court therefore finds service through email is reasonably calculated to apprise Defendant of this action and provide an opportunity to respond, and thus satisfies concerns of due process.

23 / / / 1 CONCLUSION 2 The Court, for the reasons stated above, GRANTS Plaintiffs’ Ex Parte Motion for Alternative Service. Dkt. 14. Specifically, the Court authorizes Plaintiffs to serve Defendant Sergii Danylchenko through the following email addresses: [email protected] and [email protected]. Plaintiffs are ORDERED to complete service and file proof of service by October 23, 2024.

7 Dated this 8th day of October, 2024.

A 9 S. KATE VAUGHAN United States Magistrate Judge