STERLING JOHNSON, Jr., District Judge.
Plaintiffs Microsoft Corp., FS-ISAC, Inc., and the National Automated Clearing House Association (collectively, "Plaintiffs") have moved for an entry of default against John Doe Defendants 1-21, 25-35, and 37-39 (collectively, "Defendants") pursuant to Fed. R. Civ. P. 55(a) and Local Civil Rule 55.1 (at D.I. 32). For the reasons set forth below, Plaintiffs' motion is GRANTED.
Plaintiffs commenced this action on March 19, 2012, alleging that Defendants have caused them injury in violation of the following statutes: the Computer Fraud and Abuse Act, 18 U.S.C. §1030; the CAN-SPAM Act, 15 U.S.C. § 7704; the Electronic Communications Privacy Act, 18 U.S.C. § 2701; trademark infringement under the Lanham Act (15 U.S.C. § 1114) (including false designation of origin under the Lanham Act, 15 U.S.C. § 1125(a) and trademark dilution under the Lanham Act, 15 U.S.C. § 1125(c)); and the Racketeer Influence and Corrupt Organizations Act, 18 U.S.C. §1962(c). Plaintiffs also allege unjust enrichment; trespass to chattels; and common law conversion. Plaintiffs seek injunctive and other equitable relief and damages against Defendants for their creation, control, maintenance, and ongoing use of the "Zeus Botnets" malware, which Plaintiffs allege have caused and continue injure Plaintiffs, Plaintiffs' customers and members, and the general public.
Plaintiffs served Defendants via email and internet publication. Certain defendants responded to Plaintiffs' service without revealing their true identities. As of September 13, 2012, Plaintiffs had dismissed this action with respect to two identified defendants, and another defendant has been identified by the name "Jabberzeus Crew". Notably, the other Defendants remain unidentifiable, and Plaintiffs now seek entries of default as to them.
A district court may make an entry of default against defendants who fail to plead or otherwise defend actions commenced against them by plaintiffs, if they determine that defendants have been properly served by plaintiffs.
In order make an entry of default against Defendants, the Court must be satisfied that proper service of process was effectuated. Plaintiffs may serve foreign defendants in accordance with "any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents [the "Hague Convention"]." Fed. R. Civ. P. 4(f)(1). In the case at bar, the Defendants have operated surreptitiously, making the standard means of serving defendants difficult or impossible to accomplish. Additionally, as defendants are operating from foreign jurisdictions, the Court must also determine whether the Hague Convention is the applicable law to use in determining the adequacy of Plaintiff's service of Defendants.
The remaining Defendants are alleged cybercriminals whose personal identities and physical locations are unknown. Through months of investigation, Plaintiffs have only been able to ascertain that Defendants most likely reside in the Russian Federation, Ukraine and/or Romania. As other courts in this Circuit have already recognized, Article 1 of the Hague Convention specifies that the Convention does not apply when the addresses of foreign defendants are unknown.
The Federal Rules set forth that the purpose of serving process upon a defendant is to provide the defendant with notice of the action against him or her. The purpose of providing a defendant with notice of an action against him or her is to allow the defendant to defend him or herself against that action, in comportment with the principles of Due Process. Accordingly, a plaintiff may serve notice upon a foreign defendant in any way:
Fed R. Civ. P. 4(f)(1)-(3).
While case law on this issue is somewhat scarce, other circuit courts have held that it is not an abuse of discretion for a district court to authorize a plaintiff to serve a foreign Internet business bye-mail. Since the defendant in that case did not list a physical address and chose to operate via email, the Ninth Circuit found that notice by email provided reasonable notice and an opportunity to be heard. That Court "le[ft] it to the discretion of the district court to balance the limitations of email service against its benefits in any particular case."
Similarly, the Southern District of New York found as follows:
In fact, the validity of electronic service of process upon foreign defendants has been recognized since as long ago as 1980. In
Thus, the District Court clearly has discretion to order service of process upon a foreign defendant by alternate means of service so long as the defendant is afforded proper notice, and an opportunity to defend the action.
Plaintiffs' email and internet-based service of process upon Defendants was designed to provide Defendants with notice of the action existing against them, Defendants' anonymity and unknown whereabouts notwithstanding. Accordingly, in keeping with the Court's discretion pursuant to Rules 4(1)(3) and 55(a), the Court finds that Defendants 1-21, 25-35, aod 37-39 have failed to plead or otherwise defend the action and hereby directs the Clerk of the Court to enter a notation of default against them.
SO ORDERED.