Cawthon v. Yaoyage

Background

Scott Cawthon alleges, among other claims, copyright infringement against Yaoyage. He asked to serve Yaoyage with the complaint and summons by email under Federal Rule of Civil Procedure 4(f), which governs service on a defendant outside the United States. Cawthon believed Yaoyage was located in China.

Cawthon previously filed a request for substitute service by email, and later filed a second request. The court’s order addresses both requests.

Reasoning

The court considered whether Cawthon had shown reasonable diligence in trying to find Yaoyage’s physical address. The court explained that reasonable diligence may include investigating websites and domain names, conducting multiple internet searches, calling known telephone numbers, making in-person visits, issuing subpoenas to domain registrars or email providers, using a private investigator, or trying other methods to obtain the address.

The court found that Cawthon had not shown comparable efforts. He stated that he tried to send the complaint and summons by UPS to an address provided by Yaoyage, but the UPS tracking page appeared to show a problem with the delivery address. He also used address-verification tools from Melissa Lookups and smarty.com. Those tools partially verified the address as a mailing address in China at the locality level but could not verify the street or street address.

The court found that Cawthon had not taken additional steps such as sending a private investigator to the suspected address or contacting Yaoyage’s local counsel. The court also noted that Cawthon had not alleged that Yaoyage was operating secretly and concealing its identity.

Because Cawthon had not shown reasonable diligence, the court concluded that the Hague Convention governing international service applied. Federal Rule of Civil Procedure 4(f)(3) permits alternative service only when it is not prohibited by an international agreement. The court stated that China had objected to the Hague Convention’s provisions allowing service by postal mail, and that China’s Supreme People’s Court takes the position that this objection also covers service by email. The court therefore concluded that email service was prohibited by the international agreement and could not be authorized under Rule 4(f)(3).

Disposition

Judge Robyn F. Tarnofsky denied Cawthon’s original motion for alternative service and his second motion for alternative service without prejudice to renewing the request. The court said Cawthon could renew the request if he later demonstrated reasonable diligence in trying to determine Yaoyage’s address.