1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 TRADER JOE’S COMPANY, Case No. 23-cv-01148-CRB

9 Plaintiff,

ORDER GRANTING EX PARTE

10 v.

MOTION FOR SERVICE OF

PROCESS BY ALTERNATIVE

11 DESERTCART TRADING FZE, et al., MEANS 12 Defendants.

13 Plaintiff Trader Joe’s Company (“TJC”) moves ex parte for an order permitting 14 alternative service of the summons and complaint on Defendant Desertcart Trading FZE 15 (“Desertcart”) by email. Mot. (dkt. 15). As explained below, finding this matter suitable 16 for resolution without oral argument, the Court GRANTS TJC’s motion. TJC shall effect 17 service of process on DesertCart by email to support@desertcart.com and 18 legal@desertcart.com by June 16, 2023. 19 I. BACKGROUND 20 TJC sues DesertCart and Piffert Inc.1 for unfair competition and trademark 21 infringement. See Compl. (dkt. 1). DesertCart is an entity based in the United Arab 22 Emirates. Id. ¶ 10. Its website does not provide an address, though the domain name is 23 registered to Rahul Swaminathan at an address in the UAE. Id.; Eberhart Decl. (dkt. 15-1) 24 ¶ 6. The website directs website users to contact the website via email at 25 support@desertcart.com, via phone, or by chat. Eberhart Decl. Ex. B. Between July 2022 26

27 1 TJC successfully served Piffert Inc. on March 17, 2023. See dkt. 8. Though TJC’s counsel has 1 and December 2022, TJC sent three cease-and-desist letters to support@desertcart.com. 2 Id. ¶¶ 8–9; Ex. D. After the third email, DesertCart responded: “We’d like to help you 3 further, please send an email to our legal department for any legitimate legal claims to our 4 legal department at legal@desertcart.com.” Id. ¶ 10, Ex. D. TJC then sent the letter to 5 legal@desertcart.com twice, receiving no response. Id. ¶¶ 11–12, Ex. D. 6 After filing the complaint in March 2023, TJC made many attempts to serve 7 DesertCart by way of its CEO, Rahul Swaminathan. TJC attempted to serve Swaminathan 8 at four addresses indicated by filings or investigation reports to be where Swaminathan 9 lived or worked, and each was unsuccessful. Id. ¶¶ 15–17, Ex. F–K. TJC also hired a 10 private investigator to determine where Swaminathan could be found, but he too was 11 unsuccessful. Id. ¶¶ 18–19, Ex. L–M. Because TJC’s deadline to serve Swaminathan is 12 on June 12, 2023, it brings this motion to effect service of process by email, and to extend 13 time to effect service. See Mot.; Fed. R. Civ. P. 4(m). 14 II. LEGAL STANDARD 15 Under Federal Rule of Civil Procedure 4(h)(2), service of a foreign corporation is 16 governed by Federal Rule of Civil Procedure 4(f). Rio Props., Inc. v. Rio Int’l Interlink, 17 284 F.3d 1007, 1014 (9th Cir. 2002). That rule states: 18 Unless federal law provides otherwise, an individual . . . may be served at a place not within any judicial district of the United 19 States:

20 (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by 21 the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; 22 (2) if there is no internationally agreed means, or if an 23 international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: 24 (A) as prescribed by the foreign country’s law for service 25 in that country in an action in its courts of general jurisdiction;

26 (B) as the foreign authority directs in response to a letter rogatory or letter of request; or 27 (C) unless prohibited by the foreign country’s law, by (i) delivering a copy of the summons and of the 1 complaint to the individual personally; or

2 (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed 3 receipt; or

4 (3) by other means not prohibited by international agreement, as the court orders. 5 Fed. R. Civ. P. 4(f). “Under Rule 4(f)(3), courts can order service through a variety of 6 methods, ‘including publication, ordinary mail, mail to the defendant’s last known address, 7 delivery to the defendant’s attorney, telex, and most recently, email,’ provided that there is 8 no international agreement directly to the contrary.” Juicero, Inc. v. Itaste Co., No. 17-cv- 9 1921-BLF, 2017 WL 3996196, at *2 (N.D. Cal. June 5, 2017) (quoting Rio Props., 284 10 F.3d at 1016). “[T]he method of service crafted by the district court ‘must be reasonably 11 calculated, under all the circumstances, to apprise interested parties of the pendency of the 12 action and afford them an opportunity to present their objections.’” Rio Props., 284 F.3d 13 at 1016–17 (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)). 14 In addition, “court-directed service under Rule 4(f)(3) is as favored as service 15 available under Rule 4(f)(1) or Rule 4(f)(2)”—it “is neither a last resort nor extraordinary 16 relief.” Id. at 1015 (internal quotation marks omitted). A party seeking authorization to 17 serve under Rule 4(f)(3) need not show that all feasible service alternatives have been 18 exhausted, but instead, it must “demonstrate that the facts and circumstances of the present 19 case necessitate[] the district court’s intervention.” Id. at 1016. “[T]he task of determining 20 when the particularities and necessities of a given case require alternate service of process 21 under Rule 4(f)(3)” is committed “to the sound discretion of the district court.” Id. 22

III. DISCUSSION

23 The Court finds that TJC has demonstrated that the facts and circumstances of this 24 case warrant an order allowing service by email. 25 First, alternative service is not prohibited by international agreement. TJC 26 understands that DesertCart is based in the United Arab Emirates. See Compl. ¶ 10. UAE 27 is not a signatory to the Hague Convention or any other international agreement with the 1 || United States regarding service of process, and the Court is not aware of any other 2 || international agreement prohibiting service by email to a UAE corporation. See Facebook, 3 || Inc. v. Trabi, No. 20-CV-07348-SK, 2021 WL 4942678, at *1 (N.D. Cal. May 3, 2021); 4 || CKR L. LLP v. Anderson Invs. Int’], LLC, 525 F. Supp. 3d 518, 524 (S.D.N.Y. 2021). 5 || Accordingly, because there is no prohibition of service by alternative means, the first 6 || requirement under Rule 4(f) is met. 7 Second, TJC has demonstrated that email is reasonably calculated to give notice to 8 || DesertCart. Critically, the parties have communicated via these email addresses before: 9 || After TJC sent its cease-and-desist letter to DesertCart by way of its 10 || support @desertcart.com address, DesertCart responded by requesting that TJC send its 11 |} claims to DesertCart’s legal @desertcart.com email address. See Eberhart Decl. 4] 10, Ex. 12 D; Trabi, 2021 WL 4942678, at *2; Facebook, Inc. v. Sahinturk, No. 20-CV-08153-JSC, 13 2021 WL 4295309, at *2 (N.D. Cal. Sept. 21, 2021). Additionally, TJC has sent two C 14 || emails to each of these addresses and received no indication that they bounced or were 3 15 otherwise not delivered. Eberhart Decl. § 13; Trabi, 2021 WL 4942678, at *2. And while 16 TJC need not show that service by email is a “last resort,” Rio Props., 284 F.3d at 1015, its 5 17 || attempted service of Swaminathan at four addresses “demonstrate[s] that the facts and 5 18 || circumstances of the ... case necessitate[] the... court’s intervention.” Id. at 1016; see 19 also, e.g., Facebook, Inc. v. Banana Ads, LLC, No. C-11-3619 YGR, 2012 WL 1038752, 20 || at *2 (N.D. Cal. Mar. 27, 2012). 21 || IV. CONCLUSION 22 For the foregoing reasons, the Court GRANTS TJC’s motion. TJC shall effect 23 || service of process on DesertCart by email to support @desertcart.com and 24 || legal@desertcart.com by June 16, 2023. 25 IT IS SO ORDERED. = 26 Dated: June 12, 2023

CHARLES R. BREYER

27 United States District Judge 28