Wrinkled Surface Enterprises LLC v. Gurianov

Background

Wrinkled Surface Enterprises LLC brought a copyright action against Sergei Gurianov, Ivanka Romanova, and Kompaniya SEO Solution. The opinion describes the defendants as Ukrainian and states that they were to be served in Ukraine. The plaintiff had filed a Digital Millennium Copyright Act takedown notice with Google Search concerning allegedly infringing content. In response, the defendants submitted a counternotice listing addresses and stating that they would accept service of process from the person who provided the takedown notification.

The plaintiff attempted to serve the complaint by mailing and emailing it to those addresses. The defendants did not appear and did not acknowledge receiving the complaint. The plaintiff moved for an order approving the sufficiency of its attempts to serve them.

Legal Framework

Federal Rule of Civil Procedure 4(f) governs service on an individual in a foreign country. It generally permits service through an internationally agreed method, such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, or through another method that the court orders and that is not prohibited by an international agreement.

The United States and Ukraine are parties to the Hague Service Convention. The plaintiff argued that the Digital Millennium Copyright Act’s requirement that a person filing a counternotice “accept service of process” was a federal-law exception allowing service by email without following Rule 4(f). The court disagreed.

The court interpreted “accept service” as requiring the person filing the counternotice to submit to informal service under Article 5, paragraph 2, of the Hague Service Convention—not as automatically consenting to electronic service outside Rule 4. The court distinguished accepting a particular method of service from waiving service altogether. It also reasoned that interpreting the Digital Millennium Copyright Act to work within the Hague Service Convention was more consistent with international law and respect for the laws of another country.

Application

The plaintiff did not argue that its mailing and emailing complied with Rule 4(f)(1), and the court concluded that they did not. For Ukraine, informal service under the Hague Service Convention is limited to delivery by the local Department of Justice. Ukraine also objects to sending judicial documents directly to people abroad through postal channels. The plaintiff’s attempted service therefore did not constitute valid informal service on the defendants in Ukraine.

The plaintiff also did not ask the court to authorize alternative service under Rule 4(f)(3). The court noted that alternative service may be appropriate when court intervention is necessary, but found no such necessity here. The plaintiff had waited nearly three months after filing the complaint before first attempting service and then waited approximately nine more months before updating the court about service. The court found no reason to allow service by mail or email instead of requiring service under the Hague Service Convention.

Disposition

Judge J. Paul Oetken denied the plaintiff’s motion. The Clerk of Court was directed to close the motion at Docket Number 17, and the plaintiff was directed to serve the complaint on the defendants in accordance with Rule 4(f)(1).