Pearson Education, Inc. v. Does 1-100

Background

Pearson Education, Inc., Elsevier Inc., Bedford, Freeman & Worth Publishing Group, LLC doing business as Macmillan Learning, Cengage Learning, Inc., and McGraw Hill LLC sued online retailers for alleged copyright and trademark infringement. They alleged that the defendants imported, distributed, or sold counterfeit versions of the publishers’ textbooks through online marketplaces.

The publishers moved under Federal Rule of Civil Procedure 4 for permission to serve certain corporate defendants by email. They addressed three groups: defendants located in the United States, defendants located in India, and defendants located in the United Kingdom. The publishers had unsuccessfully attempted to serve the U.S. defendants through registered agents. For the foreign defendants, the publishers had obtained addresses from corporate filings or other public documents but sought to use email instead.

U.S. Defendants

Rule 4(h) governs service on corporations. For a corporation located in the United States, service may be made under the methods authorized for serving an individual or by delivering the summons and complaint to an authorized corporate agent. New York law permits a court to authorize an alternative method when personal service is impracticable.

The court found personal service impracticable because the publishers had tried to serve the U.S. defendants through their registered agents, but service had been rejected. The record also did not show that the defendants could be reached at addresses other than those in public registrations, and many appeared to have been dissolved.

The court also found that email service would satisfy due process, meaning it was reasonably calculated to notify the defendants of the lawsuit and give them an opportunity to respond. The publishers had identified email addresses used by the U.S. defendants in conducting their online businesses. The court additionally noted that individual defendants who were directors or managers of the corporate defendants were aware of the lawsuit.

Foreign Defendants

Rule 4(h) allows service on a corporation outside the United States through methods authorized by Rule 4(f), including a court-ordered method that is not prohibited by an international agreement. The court considered the Hague Convention on service abroad, which applies when the address of the person or entity to be served is known.

The court rejected the publishers’ argument that the Hague Convention did not apply because the foreign defendants’ addresses were unreliable. The publishers had addresses from corporate filings or other public documents but had not explained what steps they took to confirm those addresses. The court therefore concluded that the publishers could not rely on the Hague Convention’s exception for cases in which the address is unknown.

The court determined that the Hague Convention did not bar email service for either India or the United Kingdom. It noted that the United Kingdom had not objected to the treaty provision concerning service through postal channels. India had objected to the methods listed in that provision, but the court concluded that this objection did not extend to email.

For the Indian defendants, the publishers had reasonably attempted service by asking individual defendants who controlled or managed the Indian companies to sign waivers of service. The court also found court intervention necessary because the lawsuit had been pending since 2017, the publishers had conducted extensive discovery, and their attempts to serve through the individual defendants had failed. The identified email addresses had been used for the Indian defendants’ online businesses, and the individual defendants were aware of the lawsuit. Email service therefore satisfied due process.

For the U.K. defendants, the publishers had not shown that they reasonably attempted service. The court noted that service through postal channels was available at the known addresses, but the publishers did not state that they had tried that method. The court denied email service for the U.K. defendants, without prejudice to renewal.

Disposition

The court granted the publishers’ motion to serve by email with respect to the U.S. defendants and the Indian defendants. Service on the U.S. defendants was to be completed within three days of the order. The court denied the motion with respect to the U.K. defendants and directed the Clerk of Court to close the motion.