Amazon.com Inc v. Peng
2:23-cv-00607
| W.D. Wash. | Aug 7, 2023Background
- Plaintiffs (including Amazon.com Inc. and UL Solutions) sued multiple China-based defendants alleging they sold products on Amazon bearing counterfeit/unauthorized UL certification marks via the "Elvicto" and "Vitowell" seller accounts; test purchases and product samples in 2022 showed false UL certifications and Amazon blocked the accounts.
- Plaintiffs moved to (a) extend time to serve three corporate defendants via the Hague Convention and (b) authorize alternative service by email on individual defendant Cao Peng and corporate defendant Shenzhen Tongxin Technology Co. Ltd.; the case was referred to the magistrate judge.
- The Court granted Plaintiffs an extension to serve the three corporate defendants through the Hague Convention and ordered Plaintiffs to file proof of service, move for additional time, or move for alternative service by January 11, 2024.
- Plaintiffs sought email service on Peng and Tongxin based on email addresses used to register seller accounts in 2017 and a March 2023 test email that did not bounce back; Plaintiffs argued email is the practical means to notify defendants who do business online and that prior Ninth Circuit authority favors email where defendants prefer electronic contact.
- The Court required that alternative service satisfy Federal Rule of Civil Procedure 4 and constitutional due process (reasonably calculated to provide notice), and observed Rio Props. establishes email service is appropriate only where indicia show the defendant actually receives or prefers email.
- The Court denied Plaintiffs’ request for alternative email service on Peng and Tongxin without prejudice, finding Plaintiffs failed to present facts demonstrating the 2017 email addresses are presently monitored or reasonably likely to provide notice; Plaintiffs were ordered by November 10, 2023 to show proof of service, renew the alternative-service motion with more evidence, or show cause why Peng and Tongxin should not be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to authorize alternative service by email on Peng and Tongxin | Email addresses used to register seller accounts and a March 2023 test message that did not bounce will provide notice; email not prohibited by international agreements; many courts have allowed email service in similar internet-sales cases. | (Implicit) Plaintiffs failed to show current use or monitoring of the email addresses; no evidence defendants received notice. | Denied without prejudice—Plaintiffs failed to show email service is reasonably calculated to provide notice. |
| Whether sending a non-bounced test email is sufficient evidence of receipt/monitoring | A non-bounced test email indicates the address is functional and likely monitored. | A non-bounced message alone is insufficient; need evidence the defendant presently uses or monitors the address (recent use, financial ties, correspondence). | Held insufficient—court requires more indicia of actual use/monitoring rather than mere non-bounce. |
| Whether to extend time to serve certain China-based corporate defendants via the Hague Convention | Extension sought to effect service under the Hague Convention on three corporate defendants. | No meaningful opposition recorded. | Granted—extension to serve via Hague; deadline to file proof or seek alternatives set for Jan 11, 2024. |
Key Cases Cited
- Butcher's Union Local No. 498, United Food & Commercial Workers v. SDC Inv., Inc., 788 F.2d 535 (9th Cir.) (plaintiff bears burden of proving service)
- Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (email service appropriate only where facts show defendant receives or prefers email and will likely get notice)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (due process requires service reasonably calculated to apprise interested parties of the action)