The Kyjen Company v. Individuals
The Kyjen Company, LLC v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A to the Complaint
- Rearden
- 1:23-cv-00612
- U.S. District Court · Southern District of New York
- 5
In The Kyjen Company v. Schedule A Defendants, Judge Rearden granted service by email and online publication after reasonable efforts failed to confirm their physical addresses.
The Kyjen Company, LLC and the 30 remaining defendants identified on Schedule A. The plaintiff may serve those defendants by email and online publication.
What happened
In The Kyjen Company, LLC v. the Schedule A defendants, The Kyjen Company asked to serve 30 remaining defendants by email and online publication because it could not confirm their physical addresses. The defendants were believed to be located in China, and the court had previously required more evidence of efforts to locate them.
The court found that The Kyjen Company had acted diligently. Its investigations included checking addresses online, sending people to visit them, attempting postal deliveries, and calling available phone numbers. The court concluded that the addresses were unknown because they were inaccurate, inaccessible, too remote, or had not produced successful contact.
Judge Jennifer H. Rearden granted the application and directed The Kyjen Company to serve the 30 defendants electronically without delay. The order addressed the method of service, not whether the defendants violated the plaintiff’s trademarks.
The detailed version
- The Kyjen Company v. Individuals · No. 1:23-cv-00612
- Rearden
- Mar. 7, 2023
Background
The Kyjen Company, LLC sued numerous entities that it alleged had violated its trademarks. It asked for permission to serve the defendants identified on Schedule A by email and online publication because their precise physical addresses could not be determined.
The court had previously denied the initial request for electronic service but said it would reconsider after a showing of “reasonable diligence,” meaning serious and reasonable efforts to identify physical addresses. In an earlier round of this case, the court found that the plaintiff had shown reasonable diligence for 45 defendants but had not done so for 35 others. The court allowed the plaintiff to clarify possible discrepancies between the defendant names in its filings and the names in Schedule A. After five of those 35 defendants were voluntarily dismissed, 30 remained at issue.
Legal Standard and Analysis
Federal Rule of Civil Procedure 4(f) governs service on defendants located outside the United States. The court explained that defendants believed to be located in China generally must be served under the Hague Convention, which ordinarily prohibits service by email and online publication. But the Hague Convention does not apply when the address of the person to be served is unknown. An address is considered unknown when the plaintiff exercised reasonable diligence to discover a physical address but was unsuccessful.
The court found that The Kyjen Company met that standard for all 30 remaining defendants. The plaintiff reported that it could not confirm that the addresses provided to online marketplace platforms were usable, including because some were inaccurate or postal delivery did not reach the defendants. The plaintiff investigated the addresses online, arranged visits by third parties, attempted postal delivery, and called available phone numbers.
The investigation showed that 11 addresses were inaccurate or nonexistent; access to four addresses was restricted or the locations were too remote; postal delivery for seven defendants was incomplete; and eight defendants could not otherwise be contacted during visits or through postal delivery. The court concluded that electronic service was permissible because further mail delays were uncertain and the plaintiff might not be able to confirm the addresses within a reasonable time.
Disposition
The court granted The Kyjen Company’s application to serve the 30 remaining defendants by email and online publication. It directed the plaintiff to complete electronic service without delay. The opinion did not decide the merits of the alleged trademark violations.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.