Ivy Coach, Inc. v. John Doe Corporation

Background

Ivy Coach Inc. sued Valerii Kafidov, also known as Valerii Kafidoff, doing business as Best College Admission Consultants, and other defendants. The complaint asserted claims under the federal Lanham Act, New York General Business Law §§ 349 and 350, and state law for trade libel or commercial disparagement and libel. Ivy Coach alleged that Best College Admission Consultants published and used false, misleading, disparaging, and defamatory statements about Ivy Coach’s consulting services.

Ivy Coach sought to serve Kafidov, whom it alleged was located in Ukraine. A WHOIS search and discovery from the domain registrar identified Kafidov as the website owner and provided a physical address in Kyiv and the email address valeriikafidov@gmail.com. The website listed contact@bestcollegeadmissionconsultants.com as its contact email.

Ivy Coach first attempted service through Ukraine’s central authority under the Hague Service Convention. The documents were delivered to that authority, but Ivy Coach did not receive a return receipt or any communication confirming service. Courtesy copies mailed and emailed directly to Kafidov also did not produce a response. Ivy Coach then requested permission to serve Kafidov by email under Federal Rule of Civil Procedure 4(f)(3).

Court’s Analysis

Rule 4(f)(3) allows a court to order service on an individual outside the United States by a method not prohibited by an international agreement. The court explained that this method is not limited to extraordinary situations or a last resort. It must satisfy due process, meaning that the method must be reasonably likely to notify the defendant about the case and give the defendant an opportunity to respond. The court also generally requires a plaintiff to show that it reasonably attempted service and that court intervention is necessary.

The court found that email service was not prohibited by the Hague Service Convention. Although Ukraine had objected to direct postal service under Article 10(a), the court found no indication that Ukraine’s objection extended to email service.

The court also found that email service would satisfy due process. Kafidov’s business operated through a website, the website used email as its contact information, and Kafidov had sent Ivy Coach a message from that email address. Ivy Coach’s investigation identified the email addresses, and its counsel received confirmation that emails sent to both addresses had been viewed several times.

Finally, the court found that Ivy Coach had reasonably attempted service and that court intervention was necessary. It cited the difficulties of serving documents through Ukraine’s central authority during the ongoing war conditions in Ukraine.

Ruling

Magistrate Judge Robyn F. Tarnofsky granted Ivy Coach’s motion for alternative service under Rule 4(f). The court authorized service of electronic copies of the summons and amended complaint on Kafidov at valeriikafidov@gmail.com and contact@bestcollegeadmissionconsultants.com. Unless the court ordered otherwise, later pleadings and discovery could also be served at those addresses. The Clerk was directed to terminate ECF 13. The opinion did not decide the truth of Ivy Coach’s underlying claims or the defendants’ liability.