Google LLC v. Does 1-3

Background

Google LLC sued Does 1-3, three unidentified individuals. According to the complaint, the defendants pretended to be affiliated with Google through social-media pages, posts, and advertisements to persuade members of the public to download malware. Google asserted that this conduct violated its trademark rights and breached its terms of service.

Google said it did not know the defendants’ true names or precise physical addresses. It identified five Gmail addresses and three phone numbers associated with Google accounts allegedly used to distribute malware. Google moved under Federal Rule of Civil Procedure 4(f)(3) for permission to serve the complaint and summons by email and text message.

Court’s analysis

Rule 4(f)(3) allows a court to direct service outside the United States by a method that is not prohibited by an international agreement. The court explained that this rule does not require a plaintiff to try other service methods first. The proposed method must also satisfy due process, meaning it must be reasonably likely under the circumstances to notify the defendants about the case and give them an opportunity to respond.

The court found that the Hague Convention did not prohibit the proposed service. It concluded that the defendants’ addresses were not known after Google investigated their identities and locations. The court also stated that, even if the defendants were in Vietnam or India, the Hague Convention did not prohibit court-directed service by email or text message in these circumstances.

The court further found that the proposed service was reasonably likely to reach the defendants. Google’s records showed that the five Gmail accounts were active and had been accessed between August 9, 2023, and November 7, 2023. The court treated email as likely to provide actual notice and approved text messages as part of the combined approach to service.

Order

The court granted Google’s motion for authorization to serve the defendants by alternative means. Google was authorized to send the summons and complaint by email and text message to the email addresses and associated phone numbers identified in the order. Until the defendants appeared or the court ordered otherwise, Google could use those addresses and numbers for other documents requiring service in the case. Service would be effective when the emails and text messages were sent, subject to Google promptly notifying the court if it learned that an address or number was unlikely to reach a defendant.

The court directed the Clerk to issue the proposed summons, required Google to file proof of service after service was completed, and vacated the January 9, 2024 motion hearing. Judge Virginia K. Demarchi signed the order.