Bank Julius Baer & Co Ltd v. Wikileaks, 2008 WL 413737 (N.D.Cal.)
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United States District Court, N.D. California
BANK JULIUS BAER & CO. LTD and Julius Baer Bank and Trust Co. Ltd,
Plaintiffs,
v.
WIKILEAKS, an entity of unknown form; Wikileaks.org, an entity of
unknown form; Dynadot, LLC, a California limited liability
corporation, and Does 1 through 10, inclusive, Defendants.
No. C 08-00824 JSW
Feb. 13, 2008.
William Joseph Briggs, II, Evan Neal Spiegel, Martin Dori Singer,
Lavely & Singer, PC, Los Angeles, CA, for Plaintiffs.
Garret D. Murai, Wendel, Rosen, Black & Dean, LLP, Oakland, CA, for
Defendants.
ORDER GRANTING EX PARTE APPLICATION FOR ORDER RE SERVICE
JEFFREY S. WHITE, District Judge.
*1 This matter comes before the Court upon consideration of
Plaintiffs' ex parte application for an order deeming service
effected, or in the alternative, permitting alternative methods of
service of summons and complaint, or additional time for pre-service
discovery. Having considered Plaintiffs' pleadings, the lack of
opposition, relevant legal authority, and the record in this case, the
Court finds the matter suitable for disposition without oral argument.
The Court finds the application well-taken and issues this Order
GRANTING the request for alternative service expeditiously due to the
urgency of the pending matter.
BACKGROUND
On February 6, 2008, Plaintiffs Bank Julius Baer & Co., LTD and Julius
Baer Bank and Trust Co, Ltd. ("Plaintiffs") filed this action alleging
unlawful and unfair business practices in violation of California
Business and Professions Code section 17200, declaratory relief,
interference with contract, interference with prospective economic
advantage, conversion, and injunctive relief. Plaintiffs allege that
Defendants WikiLeaks, Wikileaks.org and Dynadot, LLC have unlawfully
and wrongfully published confidential, as well as forged, bank
documents belonging to Plaintiffs on the website Wikileaks.org.
Plaintiffs allege that such publication violates consumer banking and
privacy protection law, under both foreign and American law.
Also, on February 8, 2008, Plaintiffs filed an ex parte application
for temporary restraining order ("TRO") and order to show cause re
preliminary injunction. Plaintiffs initiated service of the summons
and complaint, as well as all associated TRO papers, on Defendants by
priority mail return receipt on the WikiLeak Defendants' only
available and self-listed address, a post office box for contact
through its private anonymous domain "who-is" registration service and
agent for contact as well as by fax notice and personal service to
WikiLeaks Defendants' ostensible counsel, Julie Turner. (Declaration
of Evan N. Spiegel ("Spiegel Decl."), ¶¶ 7-20.)) There is also
evidence in the record that WikiLeaks, after Plaintiffs' attempts at
service at its registered post office box address, has removed the
local domain listing to include foreign defendants purportedly located
in Nairobi, Kenya. ( Id., ¶ 13, Ex. C.) Plaintiffs have properly
effectuated service on Defendant Dynadot, LLC whose service is not at
issue here.
ANALYSIS
"Federal Rule of Civil Procedure 4(h)(2) authorizes service of process
on a foreign business entity in the manner prescribed by Rule 4(f) for
individuals." Rio Properties, Inc. v. Rio International Interlink, 284
F.3d 1007, 1014 (9th Cir.2002). Rule 4(f), in turn, sets forth the
manner in which a plaintiff may effect service on an individual not
within any judicial district of the United States. Rule 4(f)(3)
provides that service may be effected "by other means not prohibited
by international agreement as directed by the court."
*2 Under the plain language of Rule 4(f)(3), a plaintiff must show
that the "other means" is not prohibited by international agreement
and must obtain a court order to effectuate service in the desired
fashion. See Rio Properties, 284 F.3d at 1014; Nanya Techn. Corp. v.
Fujitsu Ltd., 2007 WL 296087, *5 (D.Guam. Jan. 26, 2007) (granting
motion to effect service by email and international mail on Japanese
defendant). In addition, the method of service authorized by the Court
"must also comport with constitutional notions of due process." Rio
Properties, 284 F.3d at 1016. In Rio Properties, the Ninth Circuit
also stated that as long as service under Rule 4(f)(3) is "court-
directed and not prohibited by an international agreement, service of
process ordered under Rule 4(f)(3) may be accomplished in
contravention of the laws of the foreign country." Id. at 1014.
Although, the Ninth Circuit also has stated a plaintiff must obtain
court approval before attempting to effect service Rule 4(f)(3) before
service will be considered effective, a plaintiff is not first
required to attempt service under Rule 4(f)(1) or Rule 4(f)(2). See
Brockmeyer v. May, 383 F.3d 798, 806 (9th Cir.2004) (finding plaintiff
did not effect service properly where they failed to obtain court
approval prior to serving via mail); Rio Properties, 284 F.3d at 1016.
In this case, the Court concludes that the circumstances warrant
alternative service. Plaintiffs have presented evidence that physical
addresses for the WikiLeaks Defendants cannot be effectively located
or that such defendants, through their purported agents, have refused
to accept service. Plaintiffs have also demonstrated that there are
email accounts listed for defendants, which would serve the purposes
of ensuring the defendants receive adequate notice of this action and
an opportunity to be heard. See Rio Properties, 284 F.3d at 1016-17
(finding that service via electronic mail was "method most likely to
reach" defendant and concluding district court did not abuse
discretion in authorizing service via email); see also Int'l Controls
Corp. v. Vesco, 593 F.2d 166, 176-78 (2d Cir.1979) (approving service
my mail to last known address).
The Court further concludes that, as yet, there is no showing that
service via email is prohibited by an international agreement. In Rio
Properties, the Ninth Circuit stated that "as long as court-directed
and not prohibited by an international agreement, service of process
ordered under Rule 4(f)(3) may be accomplished in contravention of the
laws of the foreign country." Rio Properties, 284 F.3d at 1014.
Accordingly, Plaintiffs' ex parte application re service is GRANTED to
the extent it seeks to effectuate service via email without
requirement of return receipt.
Although the Court does not find that the service already effectuated
by Plaintiffs was improper, in an abundance of caution and considering
that the WikiLeaks Defendants may be foreign parties, the Court ORDERS
Plaintiffs to re-serve the amended complaint and summons and all TRO-
related papers, including this Order, on the WikiLeaks Defendants at
their listed email addresses by no later than 3:00 p.m., today,
February 13, 2008. Plaintiffs shall serve by email any further filings
in this matter immediately upon their filing or any further orders of
this Court immediately upon their receipt. Because it is clear from
the record before the Court that the WikiLeaks Defendants have actual
knowledge of the pendency of the application for temporary restraining
order and order to show cause re preliminary injunction,FN1 the
hearing will remain set for Thursday, February 14, 2008 at 10:00 a.m.
The Court ORDERS all parties (or their legal representatives) to be
present at the hearing, including but not limited to, Julie Turner.
FN1. The record includes an ex parte letter from attorney Julie
Turner dated February 12, 2008 which attaches a letter to Plaintiffs'
counsel in which Turner indicates that she understands "indirectly,
that Wikileaks is seeking counsel." (Docket no. 26 at 8.) Also, there
is evidence that, following Plaintiffs' attempts at service, the
WikiLeaks Defendants have removed the local domain listing to include
foreign defendants purportedly located in Nairobi, Kenya. (Spiegel
Decl., ¶ 13, Ex. C.) It is therefore clear from the record before this
Court that the WikiLeaks Defendants are aware of the pending matter.
*3 IT IS SO ORDERED.