FingerMotion, Inc. v. Capybara Research

Background

FingerMotion moved to amend the case caption and complaint. It sought to replace a Doe defendant with Igor Appelboom, remove nominal defendant Wix.com, Ltd., which had been dismissed with prejudice, and add Accretive Capital LLC doing business as Benzinga as a new defendant. FingerMotion also asked for permission to serve Appelboom by email.

The court granted the amendment requests under Federal Rule of Civil Procedure 15, which generally allows amendments when justice requires. The court noted that the case had recently been filed, no defendant had answered, one amendment clarified a defendant’s identity, and removing Wix.com corrected the caption. The court found no prejudice to any defendant.

Service on Appelboom

Appelboom lives in Brazil, and FingerMotion’s counsel obtained his address from Wix.com in response to a subpoena. Because Brazil is a party to the Hague Service Convention and Appelboom’s address was known, the court determined that the Convention applies. The court explained that Brazil had objected to certain service methods, including service by mail, and that Brazil generally requires service through its Central Authority or through the Inter-American Convention on Letters Rogatory, with documents translated into Portuguese.

The court recognized that federal courts have disagreed about whether email service is allowed in a Hague Convention country that objects to service by mail. Some courts have prohibited email service in that situation, while others have allowed it after a plaintiff shows that ordinary service efforts were futile or extraordinarily delayed. The court did not resolve that legal question here.

Instead, the court held that FingerMotion had not first attempted service through Brazil’s Central Authority. It required FingerMotion to seek Appelboom’s waiver of service, which could be requested by email, and to attempt service through the Central Authority before seeking permission for an alternative method. The request to serve Appelboom by email was therefore denied without prejudice.

Disposition

The court stated that the motion at ECF No. 15 was granted in part and denied in part. It ordered the Clerk to replace the Doe defendant with Igor Appelboom and to amend the caption to reflect Wix.com, Ltd.’s dismissal with prejudice. It permitted FingerMotion to file a First Amended Complaint adding claims arising from the same facts against Accretive Capital LLC doing business as Benzinga. FingerMotion had to file that amended complaint by January 16, 2024 and serve the order and amended complaint on the defendants.