Elsevier, Inc. v. Siew Yee Chew
287 F. Supp. 3d 374
S.D. Ill.2018Background
- Educational publishers sued dozens of unknown online sellers for trafficking counterfeit textbooks via eBay/PayPal; plaintiffs later identified 13 foreign defendants (Malaysia- and China-based) via subpoenas to eBay and PayPal.
- Defendants operated eBay storefronts using plaintiffs' book titles, cover images, and ISBNs; many provided fictitious or changing physical addresses but used working email addresses for storefront accounts.
- Plaintiffs previously obtained an ex parte TRO, expedited discovery, and a preliminary injunction; initial service of those orders was by email and produced no responses.
- After receiving account records from eBay/PayPal, plaintiffs amended the complaint to name the defendants and moved under Fed. R. Civ. P. 4(f)(3) for court-authorized alternative service by email (with email tracking).
- Malaysia is not a Hague Convention signatory; China is, but the court found Hague service impracticable because defendants’ addresses are unknown and Article 1 excludes service when address is unknown.
- The court concluded email service to the eBay/PayPal-associated addresses (with tracking) is reasonably calculated to give notice and thus comports with due process, and granted alternative service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court should authorize alternative service under Rule 4(f)(3) by email | Email to eBay/PayPal account addresses (with tracking) will give notice and defendants routinely use those emails for business | Implicit defense: traditional international methods (e.g., Hague) should be used / concerns about notice via email | Granted: Rule 4(f)(3) authorizes email service; not required to exhaust Hague where impracticable |
| Whether Hague Convention bars or requires use before Rule 4(f)(3) | Malaysia not a Hague signatory; China is but defendants’ addresses unknown so Hague inapplicable | Hague covers China; plaintiffs should use treaty procedures | Court: Hague objection inapplicable for Malaysia; for China, Hague service impracticable when address unknown and Article 1 excludes such cases |
| Whether email service satisfies constitutional due process | Email is reasonably calculated to notify defendants who conduct business and communicate via those emails | Email may be less formal than traditional service; reliability concerns | Court: Email (with tracking) satisfies Mullane standard and comports with due process |
| Whether court should require plaintiffs to attempt other Rule 4(f) methods first | Not necessary here given futility and inability to obtain addresses | Some precedents suggest exhausting Hague first in Hague signatory cases | Court: No requirement to exhaust other Rule 4(f) methods before 4(f)(3); discretion favors alternative service given circumstances |
Key Cases Cited
- Rio Props., Inc. v. Rio Int'l Interlink, [citation="284 F.3d 1007"] (9th Cir.) (Rule 4(f)(3) is an independent, discretionary means of service)
- Mullane v. Central Hanover Bank & Trust Co., [citation="339 U.S. 306"] (U.S.) (service must be reasonably calculated to apprise interested parties of suit)
- Sulzer Mixpac AG v. Medenstar Indus. Co. Ltd., [citation="312 F.R.D. 329"] (S.D.N.Y.) (email service can satisfy due process; China’s Article 10 postal objection does not bar email)
- In re GLG Life Tech Corp. Sec. Litig., [citation="287 F.R.D. 262"] (S.D.N.Y.) (discussing prudential requirements courts sometimes impose before ordering alternative service)
- Jian Zhang v. Baidu.com Inc., [citation="293 F.R.D. 508"] (S.D.N.Y.) (addressing Hague service limitations and alternative service)
- United States v. Lebanese Canadian Bank SAL, [citation="285 F.R.D. 262"] (S.D.N.Y.) (decision to order Rule 4(f)(3) service is committed to district court discretion)
- Madu, Edozie & Madu, P.C. v. SocketWorks Ltd., [citation="265 F.R.D. 106"] (S.D.N.Y.) (noting courts’ prudential requirements for alternative service)