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Whoshere, Inc. v. Orun

United States District Court, E.D. Virginia, Alexandria Division

February 20, 2014

WHOSHERE, INC., Plaintiff,
v.
GOKHAN ORUN d/b/a/ WhoNear; Who Near; whonear.me, Defendant.

OPINION

THOMAS RAWLES JONES, Jr., Magistrate Judge.

Plaintiff WhosHere, Inc. moved for permission to serve process by alternative methods on defendant, Gökhan Örün, who is allegedly located in Turkey. Dkt. No. 13. In accordance with Fed.R.Civ.P. 4(f)(3), plaintiff proposed to serve process on defendant by email and through two social networking sites, Facebook and LinkedIn. Id.

The court granted plaintiff's motion and ordered that plaintiff serve process on defendant by transmitting copies of the summons and complaint along with the order (no. 16) by: 1) email to gokhan@whonear.me; 2) email to gokhanorun@gmail.com; 3) Facebook at https://www.facebook.com/OrunGokhan; and 4) LinkedIn at http://www.linkedin/in/gokhanorum. No. 16. This opinion explains the basis for that order.

I. Background and Procedural History

On April 30, 2013, plaintiff brought this action against defendant, alleging among other things trademark infringement, unfair competition and cybersquatting. Plaintiff is a company that offers a social proximity networking application that allows its users to create online profiles and meet people near them with similar interests. Compl. ¶ 7. Launched in 2008, the WhosHere application can be operated on mobile and technology devices including smartphones and tablets. Id.

Defendant allegedly is an individual residing in and having his principal place of business in Turkey. Compl. ¶ 2. Defendant allegedly does business as "WhoNear" and "whonearme" which plaintiff asserts involves the unauthorized use of imitations of the WhosHere® trademark. Compl. ¶ 21. Plaintiff alleges that defendant developed a social proximity networking application and created a website, www.whonear.me, ("defendant's website") offering defendant's application. Compl. ¶¶ 23-25; Exs. D; E. Defendant is listed as the registrant and administrative contact for www.whonear.me. Compl. ¶ 24.

On multiple occasions, plaintiff notified defendant of the alleged infringing activities but he continued to use the "WhoNear" name despite requests by plaintiff to cease. Compl. ¶ 27; No. 9-2 at ¶ 3. Plaintiff sent email communications addressed to defendant in hope of engaging in discussions to resolve the issue. No. 14 at Ex. 1. On April 1, 2012, defendant responded by email to plaintiff's communications using the email address, gokhan@whonear.me. Id. In this email correspondence, defendant allegedly stated that "[t]his is Gökhan, I'm founder and developer of WhoNear" and further stated that he would "like to talk." Id. Defendant provided plaintiff with additional contact information including a second email address, gokhanorun@gmail.com, and a Skype username: gokhanorun. Id.

In July 2013, plaintiff sent a courtesy copy of the complaint herein to defendant via email to gokhan@whonear.me. Id. at ¶ 4. Defendant did not respond to this communication or any further communications. Id ; No. 14 at 2.

Plaintiff attempted to serve process on defendant under Rule 4(f)(1) pursuant to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("Hague Convention"). No. 9-2 at Ex. B. On August 19, 2013, plaintiff contacted the Turkish Ministry of Justice and provided it with copies of the summons and complaint translated into Turkish[1] to be served on defendant at the address that was listed on defendant's website. Id . at ¶ 5. As the initial service deadline was approaching, on August 22, 2013, plaintiff requested an extension of time to serve the summons and complaint. No. 6. On September 4, 201 3, the court granted plaintiff's motion and extended the time to serve process on defendant through February 7, 2014. No. 8.

On November 19, 2013, the Turkish Ministry of Justice returned the summons and complaint to the United States Office of Foreign Litigation ("OFL") because defendant could not be located at the address provided by plaintiff. No. 9-2 at ¶¶ 6-8; Exs. C, D. Plaintiff received these documents back from the OFL on December 16, 2013. Id. at ¶ 7.

On January 22, 2014, plaintiff filed its second motion for an extension of time to serve process on defendant in accordance with the Hague Convention. No. 9. On January 28, 2014, plaintiff filed the present motion proposing that plaintiff be allowed to serve process on defendant through email and social networking websites pursuant to Rule 4(f)(3). No. 13.

II. Legal Standard

In order to serve process on an individual in a foreign country, a federal plaintiff must comply with both constitutional due process notice requirements[2] and Rule 4(f). In order for service to satisfy due process, the methods of service must provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co , 339 U.S. 306, 314 (1950); see also BP Prods. N. Am., Inc. v. Dagra , 232 F.R.D. 263, 264 (E.D. Va. 2005). Rule 4(f)(1)-(3) governs service of process on an individual in a foreign country and provides three mechanisms of service:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service ...

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