Facebook, Inc. v. Sahinturk

Background

Facebook and Instagram brought an action against Ensar Sahinturk alleging breach of contract, trademark infringement, cybersquatting, and unjust enrichment. Plaintiffs alleged that, since at least August 2017, Sahinturk created and maintained clone Instagram websites and web viewers that displayed Instagram users’ public profiles. They alleged that automated software collected and republished photos, videos, and profile information from more than 100,000 users.

Plaintiffs attempted to serve Sahinturk in Turkey through the Hague Service Convention. A process server advised that the translated documents had been sent to the Turkish Ministry of Justice and that service could take up to eight months. On August 13, 2021, the Turkish Ministry of Justice issued a certificate of nonservice stating that the address was insufficient.

Plaintiffs also emailed Sahinturk at esahinturk@gmail.com, the address used to register his clone websites, and requested that he waive formal service. Sahinturk communicated with plaintiffs’ counsel from that email address and participated in a Zoom meeting with counsel. Plaintiffs said their additional investigation—including online searches, public-record research, and review of business registrations—did not identify his physical address.

Legal standard and analysis

Federal Rule of Civil Procedure 4(f)(3) permits a court to authorize service on an individual in a foreign country by a method that is not prohibited by an international agreement. The court explained that alternative service must also satisfy due process, meaning it must be reasonably likely to inform the person about the lawsuit and give that person an opportunity to object.

The court found that plaintiffs had shown that Sahinturk’s physical address was “not known.” Plaintiffs had repeatedly asked him for the address and had conducted their own investigation without finding it. Because the Hague Service Convention does not apply when the person’s address is unknown, the court concluded that email service was not prohibited under the circumstances.

The court also found that email service was reasonably likely to provide actual notice. Plaintiffs had corresponded with Sahinturk at the proposed email address, demonstrating that it was a real address he used. The court therefore concluded that sending the summons and complaint to that address would give Sahinturk notice of the lawsuit and an opportunity to present objections.

Disposition

The court vacated the September 30, 2021 hearing date because oral argument was unnecessary. It GRANTED plaintiffs’ motion for alternative service and authorized service on Sahinturk by email. The order disposed of Docket No. 17. The court did not decide the merits of plaintiffs’ underlying claims.