Cawthon v. Yaoyage

Background

Scott Cawthon filed a third motion asking to serve Yaoyage by email under Federal Rule of Civil Procedure 4(f), which governs service on a person in a foreign country. Cawthon believed Yaoyage was located in China. The court had denied Cawthon’s first and second motions on January 9, 2024, while allowing him to renew the request if he could later show reasonable diligence in trying to determine Yaoyage’s address. Cawthon did not object to that order.

After the court issued an order asking why the case should not be dismissed because Yaoyage had not been served more than 17 months after the case began, Cawthon filed the third motion. He did not describe additional efforts to locate Yaoyage’s address and instead repeated arguments from his earlier motions.

Court’s analysis

The court said the third motion was an attempt to avoid the 14-day objection deadline for challenging the earlier order under Federal Rule of Civil Procedure 72(a). The court nevertheless considered Cawthon’s arguments.

Cawthon argued that his use of address-verification tools from Melissa Lookups and Smarty was more substantial than the internet searches discussed in a prior related proceeding and was comparable to another case in which a private investigator visited possible addresses in China. The court disagreed. It found that the online tools required little more effort than basic internet searches and much less effort than hiring an investigator in the foreign country.

The court also rejected Cawthon’s argument that Yaoyage’s certification of an address through Amazon’s dispute-resolution process reduced his obligation to investigate the physical address. It further rejected the argument that Yaoyage had concealed an identity or location in a way that justified email service. The court distinguished cases involving sophisticated efforts to hide identities from the use of an incorrect address on an Amazon form.

The court found that the address-verification websites had partially verified Yaoyage’s address to the locality level. Although they could not confirm a legitimate street or street address in China, they provided a starting point for further investigation. The court concluded that reasonable diligence required Cawthon to pursue that lead.

Ruling and effect

Because Cawthon had not shown reasonable diligence in locating Yaoyage’s address, the court concluded that the Hague Convention on service abroad applied. The court stated that China had objected to provisions allowing service by postal mail and that China’s Supreme People’s Court takes the position that the objection also covers service by email. The court therefore concluded that email service was prohibited by an international agreement and impermissible under Rule 4(f)(3).

Judge Robyn F. Tarnofsky denied Cawthon’s third motion for alternative service. The order gave Cawthon until March 4, 2024, to serve Yaoyage or renew the motion based on additional efforts to locate Yaoyage’s physical address. If Cawthon did neither, or if later efforts were still found insufficient, Judge Tarnofsky stated that she would issue a report and recommendation to Judge Rearden recommending that the complaint be dismissed without prejudice under Rule 4(m) for failure to serve Yaoyage within 90 days of filing the case.