Facebook, Inc. v. Kokhtenko

Background

Facebook, Inc. and Gucci America, Inc. sued Natalia Kokhtenko. The complaint alleged that, from at least April 2020 through at least April 2021, Kokhtenko used Facebook and Instagram to operate an international online business selling counterfeit Gucci products. Facebook alleged that it had disabled her accounts and removed posts for violating its terms and policies, but that she continued using the platforms.

The complaint asserted six causes of action: counterfeiting under 15 U.S.C. § 1114(1); trademark infringement under the same provision; federal unfair competition under 15 U.S.C. § 1125(a); unfair competition under California law; common-law unfair competition; and breach of contract under California law.

Motion for Alternative Service

The plaintiffs moved for permission to serve Kokhtenko by email at addresses she used in connection with her online businesses. Federal Rule of Civil Procedure 4(f)(3) permits service on an individual outside the United States by another method ordered by the court, so long as the method is not prohibited by an international agreement.

The court noted that Russia is a signatory to the Hague Convention but had suspended judicial cooperation with the United States in civil and commercial matters. The court also noted that Russia does not permit service of documents by mail. The court found that it was not aware of any international agreement prohibiting service by email and cited other courts that had allowed email service to Russian parties.

Court’s Analysis

The court found email service appropriate because the plaintiffs had limited means to serve Kokhtenko outside of personal service. It further found that the proposed method was reasonably calculated to provide notice of the lawsuit. The plaintiffs identified seven email addresses. Kokhtenko had provided the first three during appeals involving Facebook’s deactivation of her Facebook and Instagram accounts, while the remaining addresses appeared on websites for her online businesses. The court reasoned that someone was more likely than not monitoring those business addresses for purchase orders. The plaintiffs’ voluntary translation of the relevant documents into Russian also supported adequate notice.

Disposition

The court granted the plaintiffs’ motion for leave to effect alternative service by email. This order addressed service of process and did not resolve the merits of the counterfeiting, trademark, unfair-competition, or contract claims.