IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Kathleen M. Tafoya

Civil Action No. 11–cv–02754–MSK–KMT

LIBERTY MEDIA HOLDINGS, LLC,

Plaintiff,

v. 

SHENG GAN f/k/a PROTECTED DOMAIN SERVICES CUSTOMER NCR-3356109 d/b/a

SITERIPKING.COM, and

JOHN DOES 2-10, 

Defendants.

ORDER

This matter is before the court on “Plaintiff’s Ex Parte Motion for Alternative Service.”

(Doc. No. 15, filed Dec. 29, 2011 [Mot.].) In its Motion, Plaintiff seeks to serve Defendant

Sheng Gan f/k/a Protected Domain Services Customer NCR-3356109 (hereinafter “Defendant”)

by alternate means of service, pursuant to Federal Rule of Civil Procedure 4(f)(3). Plaintiff’s

Motion originally sought to serve Defendant by email. (See id.) 

On January 17, 2012, the court issued an Order taking Plaintiff’s Motion under

advisement. (Doc. No. 17, filed Jan. 17, 2012 [hereinafter “Jan. 17, 2012 Order” or “Order”].) 

In that order, the court found that, while not prohibited by international agreement, Plaintiff’s

proposal to serve Defendant by email failed to comply with constitutional notions of due

process. (Id. at 6–8.) Specifically, the court found that there was no indication that Defendant

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was independently aware of this litigation and that there was no reasonable assurance that

Plaintiff’s email of the complaint and summon would be received at the email addresses

provided by Plaintiff. (Id.) Consequently, the court found that Plaintiff’s proposal for alternate

service under Rule 4(f)(3) was not “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. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). 

Nevertheless, the court elected to take Plaintiff’s Motion under advisement to allow

Plaintiff an opportunity to cure the constitutional deficiencies noted in the Order. Specifically,

the court found that if Plaintiff was able to enhance its email service proposal with some reliable

assurance that the email service of process were received by the target email, such as a “digitally

signed proof of delivery,” it would be far more likely to pass constitutional muster. (Jan. 17,

2012 Order at 8 (quoting Williams v. Advertising Sex LLC, 231 F.R.D. 482, 486 (N.D. W. Va.

2005)). Thus, the court ordered Plaintiff to file a supplement to its motion with an enhanced

method for serving Defendant via email, that would further assure that Plaintiff’s complaint and

summons was actually received. 

Plaintiff filed its Supplement to Plaintiff’s Ex Parte Motion for Altenative [sic] Service”

on January 25, 2012. (Doc. No. 17 [Supp.].) In its Supplement, Plaintiff notes that Defendant

has disabled the email accounts referenced in its Motion. (Supp. at 3.) Specifically, on January

18, 2012, the day after the court’s Order, Plaintiff’s counsel attempted to send emails to the two

email addresses included in its Motion—kankaqi@gmail.com and support@siteripking.com

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—and both emails were returned as undeliverable. (Doc. No. 18-1, Declaration of Mark

Randazza, ¶¶ 4-5 [Randazza Decl.].)

As a consequence, Plaintiff no longer seeks to serve Defendant via email. Instead,

Plaintiff’s Supplement now proposes another alternate means of service pursuant to Rule

4(f)(3)—service by publication on the internet. Specifically, Plaintiff seeks to “place a website

on the internet with the name of this case, the name of the Defendant, and an announcement of

the lawsuit with PDF links to the Complaint and Summons.” (Supp. at 8-9.) Additionally,

Plaintiff seeks to have the court order Name.com, which provides domain registration and

hosting services to the allegedly infringing www.siteripking.com website (Doc. No. 8, filed Oct.

28, 2011, at 2), to re-direct the Defendant’s other domain names to this internet publication. 

(Supp. at 9.) 

As noted in the court’s January 17, 2012 Order, Rule 4(f)(3) provides only two express

limitations on alternate means of service of process on a foreign individual—it “must be (1)

directed by the court; and (2) not prohibited by international agreement.” (Jan. 17, 2012 Order at

2 (quoting Rios Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002)); see

also Fed. R. Civ. P. 4(f)(3). For essentially the same reasons outlined in the January 17, 2012

Order, the court finds that service by publication on the internet is not prohibited by international

agreement. More specifically, the Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361 (“Hague

Service Convention”) provides that “[t]his convention shall not apply where the address of the

person to be served with the document is not known.” See also BP Products N.A., Inc. v. Dagra,

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 The court already concluded in the January 17, 2012 Order that Plaintiff has taken more

than reasonable measures to attempt to serve Defendant by traditional means. (Jan. 17, 2012

Order at 4-5.) Those findings and conclusions are incorporated herein by reference. 

4

236 F.R.D. 270, 271 (E.D. Va. 2006). Here, as outlined in the court’s January 17, 2012 Order,

Plaintiff has made extensive efforts to uncover Defendant’s physical address or location, but has

only uncovered incomplete Chinese and Costa Rican addresses. Consequently, because

Plaintiff’s whereabouts are unknown, the Hague Service Convention does not apply. 

In addition to the requirements of Rule 4(f)(3), as discussed above, the court must also

assure itself that the proposed alternate method of service “comport[s] with constitutional

notions of due process.” Rio Props., 284 F.3d at 1016. See also id. at 1016-17 (quoting

Mullane, 339 U.S. (“To meet this requirement, the method of service crafted by a district court

must be ‘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.’”)

Courts have recognized that “service by publication . . . is an acceptable alternative

means under 4(f)(3), so long as diligent attempts have been made to locate the defendant and

serve process by traditional means,1

 and the publication is one that likely would reach the

defendant.” BP Products, 236 F.R.D. at 272; see also SEC v. Tome, 833 F.3d 1086, 1093 (2d

Cir. 1987). Additionally, prior to authorizing service by publication, courts have required that

the defendant be aware of the suit and claims against them. Tome, 833 F.3d at 1093-94; BP

Products, 236 F.R.D. at 272; In re Maxon Eng’g Servs., Inc., 418 B.R. 653, 666 (D.P.R. 2009). 

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The court finds that Plaintiff’s proposal to serve Defendant by internet publication fails on both

counts. 

As to the second requirement, whether Defendant is aware of this suit, Plaintiff maintains

that Defendant is likely monitoring this litigation. (Supp. at 10.) In support of this position,

Plaintiff notes that the allegedly infringing website, www.siteripking.com, was operational on

Friday, October 28, 2011, and remained operational when Plaintiff checked it at some point

during the week of October 31, 2011, but was no longer operational on November 9, 2011 when

this court entered its order on Plaintiff’s Motion for Early Discovery (Doc. No. 12). (Doc. No.

18-2, Declaration of Erika Dillon, ¶ 15 [Dillon Decl.].) Additionally, Plaintiff notes that

sometime between December 29, 2011, when Plaintiff filed its Amended Complaint identifying

Defendant by name for the first time, and January 23, 2012, several website domains owned by

Defendant were either altered or no longer online. (Id. ¶¶ 5–8.) Based on the timing of these

actions, Plaintiff maintains that Defendant is likely monitoring this litigation and taking evasive

action in response thereto. 

While these facts might conceivably suggest that Defendant is aware of this litigation and

is taking steps to avoid detection, the court finds that they are just as, if not more, likely a mere

coincidence. As to the siteripking.com website, the court finds that, without more, it is just as

likely that Defendant coincidentally disabled this website around the same time as the court’s

Order on Plaintiff’s Motion for Early Discovery. Defendant may well have simply abandoned

this operation unilaterally at that time, rather than in response to anything occurring in this

litigation. 

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The fact that Defendant apparently altered or disabled a number of his other websites

after the Amended Complaint was filed also appears to be a coincidence. Indeed, the probative

value of this evidence, if any, is undercut by the fact that Defendant continues to operate a

number of his other websites without any concern as to the progress of this litigation. (Dillon

Decl. ¶¶ 9-13.) 

Altogether, the court finds that the evidence of Defendant’s purported knowledge of this

action pales in comparison to that which other courts considered before finding that a defendant

is aware of the pending litigation. See, e.g., In Re Maxon Eng’g Servs., 418 B.R. at 666 (finding

it was “unquestionable that Co-defendants are aware of this suit pending against them” where the

defendants’ attorney was provided with the complaint and summons and the co-defendants

submitted declarations stating that they did not live at an address where the plaintiff attempted to

affect service); Tome, 833 F.2d at 1093-1094 (finding that the defendants had “full knowledge of

the pendency of the action against them” due to the pendency of an SEC investigation and a

discussion among the defendants of the “size of the legal fees for all involved in this action”). 

But see Smith v. Islamic Emirate of Afg, Nos. 01 CV 10132(HB), 01 CIV 10144(HB), 2001 WL

1658211, at *2-4 (S.D.N.Y. Dec. 26, 2011) (unpublished) (authorizing service by publication on

Osama Bin Laden because he could be “presumed to know that the estates of the victims would

file civil cases against him . . . arising from the attack on the World Trade Center.”) Therefore,

although a somewhat close call, the evidence ushered by Plaintiff falls short of convincing the

court that Defendant is aware of the pendency of this litigation.

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Perhaps more importantly, the court finds that Plaintiff’s proposed means of effecting

service falls well short of satisfying due process. As already noted, Plaintiff proposes to “place a

website on the internet with the name of this case, the name of the Defendant, and an

announcement of the lawsuit with PDF links to the Complaint and Summons.” (Supp. at 8-9.) 

Plaintiff maintains that Defendant’s technological savvy and internet familiarity makes it highly

unlikely that an internet publication would not be seen by Defendant. (Dillon Decl. ¶ 18.) 

However, the court finds that no matter how technologically sophisticated Defendant

may be, no individual can have a full mastery of the entire internet. The internet is nearly

infinite in nature. See Reno v. ACLU, 521 U.S. 844, 849-853 (1997) (describing the

extraordinary size of the internet as it existed in 1996). As such, simply placing the complaint

and summons on a website would be far less likely to draw Defendant’s attention than a

publication in a small regional paper, which, according to the Mullane Court, fails to satisfy due

process. 339 U.S. at 315, accord Tome, 833 F.2d at 1093. Indeed, only chance alone would

bring such a site to Defendant’s attention; it is speculative, at best, that Defendant might enter

his name or, even less likely, the name of this case, into an internet search engine. See Mullane,

339 U.S. at 315 (finding that “chance alone brings to the attention of even a local resident an

advertisement in small type inserted in the back pages of a newspaper”). Nor has Plaintiff

provided any assurance that, if such a search were entered, Plaintiff’s proposed website would be

among the top search results. As such, there is a high probability that Plaintiff’s proposed

website would be buried in the internet’s vastness and never come to Defendant’s attention. 

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Plaintiff does propose that the court order Name.com to redirect Defendant’s other

domain names to the Plaintiff’s website publication for a fourteen-day period. (Supp. at 9.) 

Arguably, this would make it much more likely that this action will be brought to Defendant’s

attention. However, Plaintiff does not cite any case law or other authority for the proposition

that the court has jurisdiction to require Name.com, a nonparty, to affirmatively act in such a

manner. Notably, Name.com has not been provided with any opportunity to object to Plaintiff’s

proposal, which would clearly interfere with Name.com’s autonomy. Accordingly, although this

“unorthodox” additional step might bolster Plaintiff’s service by publication proposal, the court

finds it lacks the authority to see it through.

Altogether, the court finds that Plaintiff’s Rule 4(f)(3) alternate method of service fails to

comport with constitutional notions of due process. The court understands that Plaintiff is

frustrated with its inability to haul Defendant into court and make him stand for his alleged

surreptitious internet activities. However, the court is not at liberty to bend the Constitution’s

guarantees in order to appease this frustration. Accordingly, having considered all of the

arguments raised in both Plaintiff’s Motion and Supplement, the court finds that Plaintiff’s 

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Motion for Alternative Service is properly denied. 

Wherefore, for the foregoing reasons, it is 

ORDERED that “Plaintiff’s Ex Parte Motion for Alternative Service” (Doc. No. 15) is

DENIED. 

Dated this 14th day of January, 2012.

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