Esposito v. TipRanks LTD

Background

Joseph Esposito sued TipRanks, Ltd., alleging that it violated the Video Privacy Protection Act, 18 U.S.C. § 2710, by knowingly disclosing users’ personal viewing information to Meta Platforms, Inc. Esposito brought the claim for himself and a proposed class of TipRanks’s digital subscribers.

TipRanks is described in the opinion as an Israeli digital media company based in Tel Aviv. Esposito initially attempted service through the Israeli office responsible for receiving service requests under the 1965 Hague Convention on Service Abroad of Judicial and Extrajudicial Documents. The request identified an address in Tel Aviv, but the Israeli central authority reported that TipRanks had moved to an unknown address and could not be served there.

The court later granted Esposito an extension of time to serve TipRanks, based on his earlier efforts and his statement that he planned to retain Israeli counsel. Esposito then filed a proof of service stating that his Israeli lawyer had personally delivered the complaint and summons to TipRanks’s chief operating officer at a different Tel Aviv address.

TipRanks moved to dismiss under Federal Rules of Civil Procedure 12(b)(5), 12(b)(3), and 12(b)(6), and alternatively sought summary judgment under Rule 56. The court addressed service of process first as a threshold issue.

Service-of-Process Analysis

Rule 12(b)(5) permits dismissal for insufficient service of process. The plaintiff bears the burden of showing that service was adequate. Because TipRanks was located outside the United States, the court applied Rule 4(h)(2), which permits service on a foreign corporation through methods authorized by Rule 4(f), subject to the limits in that rule.

The court held that the Hague Convention applied because Esposito had ultimately located TipRanks’s physical address. Although the Convention does not apply when the address of the person to be served is unknown, the court concluded that this exception did not apply after Esposito’s efforts successfully identified where TipRanks could be found.

The court further held that personal service through TipRanks’s chief operating officer did not comply with the Convention. Israel had objected to the Convention provision that permits direct service through people in the destination country. As a result, Israel required service through its designated court authority in the circumstances described by the opinion. Personal service therefore did not satisfy Rule 4(f)(1).

The court also rejected reliance on Rule 4(f)(2), which provides certain service methods when there is no applicable international method or when an agreement does not specify a method. The Hague Convention supplied an international method here, and the court determined that Israel’s objection made personal service impermissible. In addition, Rule 4(h)(2) independently excludes personal delivery under Rule 4(f)(2)(C)(i) for service on a foreign corporation.

Finally, the court rejected Rule 4(f)(3). That provision allows service by another method ordered by the court and not prohibited by an international agreement. The court’s earlier order had only extended the service deadline; it had not ordered personal service or authorized a particular method. Personal service was also prohibited by Israel’s objection to that method.

Disposition

The court concluded that Esposito had not shown that TipRanks was properly served. It granted TipRanks’s motion to dismiss under Rule 12(b)(5) for insufficient service of process. The complaint was dismissed without prejudice to refiling and properly serving TipRanks. The opinion does not state that the court ruled on the alternative motion for summary judgment. The Clerk of Court was directed to close the motion docket entry.