Chou

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 MACROCHARTS RESEARCH LLC, Case No. 25-cv-06447-JST

8 Plaintiff,

ORDER GRANTING MOTION FOR

9 v. ALTERNATE SERVICE

10 TONY CHOU, Re: ECF No. 14

Defendant.

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13 Before the Court is Plaintiff’s Motion for Alternate Service. ECF No. 14. The Court will

14 grant the motion.

15 I. BACKGROUND

16 Plaintiff MacroCharts Research LLC filed a copyright infringement claim against Tony

17 Chou on July 31, 2025, but has been unable to serve him. ECF No. 14 at 3.

18 Prior to filing suit, Plaintiff sent Digital Millennium Copyright Act (“DMCA”) takedown

19 notices to the blogging platform Substack.com concerning Chou’s allegedly infringing content.

20 ECF No. 1-1. In response, Chou submitted a DMCA counter-notification pursuant to 17 U.S.C.

21 § 512(g)(3), in which he consented to the jurisdiction of the Northern District of California and

22 agreed to accept service of process from Plaintiff. Id. In that counter-notification, Chou also

23 identified the mailing address for that purpose as 148 Sycamore Street, The Blue Mountains,

24 Ontario L9Y 4E4, Canada. Id. at 3.

25 From August 4, 2025, to October 20, 2025, Plaintiff attempted to serve Chou five times:

26 twice at the Blue Mountains address provided in his DMCA counter-notification, once at an

27 address provided by Substack, once at an address obtained by Plaintiff’s investigator, and once by

1 five attempts were unsuccessful. Id.

2 Plaintiff served the present motion by email at contact@subutrade.com and by mail to the

3 Blue Mountains address. ECF No. 18. On November 3, 2025, Chou used that email address to

4 respond to Plaintiff’s counsel, attaching an opposition to the motion, a notice of special

5 appearance, and a certificate of service, which Chou also filed on the docket. ECF Nos. 18, 20.

6 Plaintiff replied on November 6, 2025. ECF No. 19. On December 23, 2025, Chou filed both a

7 notice of errata and motion for leave to file a sur-reply in response to Plaintiff’s reply. ECF Nos.

8 24, 25, 26.

9 II. JURISDICTION

10 The Court has jurisdiction under 28 U.S.C. § 1331.

11 III. LEGAL STANDARD

12 Federal Rule of Civil Procedure 4(f)(1) provides for service of an individual in a foreign

13 country “by any internationally agreed means of service that is reasonably calculated to give

14 notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and

15 Extrajudicial Documents.” Rule 4(f)(3) also authorizes service “by other means not prohibited by

16 international agreement, as the court orders.”1 “[C]ourt-directed service under Rule 4(f)(3) is as

17 favored as service available under Rule 4(f)(1)” and “is neither a ‘last resort’ nor ‘extraordinary

18 relief.’” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002).

19 Courts applying Rule 4(f)(3) have “authorized a wide variety of alternative methods of

20 service including publication, ordinary mail, mail to the defendant’s last known address . . . and

21 most recently, email.” Id. at 1016. The Ninth Circuit “commit[s] to the sound discretion of the

22 district court the task of determining when the particularities and necessities of a given case

23 require alternate service of process under Rule 4(f)(3).” Id.

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1 Plaintiff’s motion references FRCP Rule 4(e) in its title rather than Rule 4(f). “[T]he label

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attached to a motion does not control its substance.” Prudential Real Estate Affiliates, Inc. v. PPR

Realty, Inc., 204 F.3d 867, 880 (9th Cir. 2000); see also Hasbrouck v. Texaco, Inc., 879 F.2d 632,

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635 (9th Cir. 1989) (“The nomenclature the movant uses is not controlling. This court must

decide whether a motion, however styled, is appropriate for the relief requested.” (citations

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omitted)). The “failure of plaintiff’s counsel to refer to the proper rule number does not prevent us

1 Although a plaintiff is not required to attempt “every permissible means of service of

2 process before petitioning the court for alternative relief” under Rule 4(f)(3), a plaintiff must

3 “demonstrate that the facts and circumstances of the . . . case necessitate[ ] the district court’s

4 intervention.” Id. Although a plaintiff need not show that that traditional methods of service are

impracticable or unlikely to succeed, Brown v. China Integrated Energy, Inc., 285 F.R.D. 560, 565

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(C.D. Cal. 2012), doing so is sufficient to justify service under Rule(f)(3). See, e.g., Tevra Brands

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LLC v. Bayer Healthcare LLC, No. 19-cv-04312-BLF, 2020 WL 3432700, at *5 (N.D. Cal. June

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23, 2020). Any method of service must comport with due process, meaning that it “must be

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‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of

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the action and afford them an opportunity to present their objections.’” Rio Props., 284 F.3d at

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1016 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).

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Accordingly, to establish that service by email is appropriate, the moving party must show

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service by email is (1) not prohibited by international agreement, and (2) reasonably calculated to

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provide defendants with actual notice. Toyo Tire & Rubber Co. v. CIA Wheel Grp., No. 8:15-cv-

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0246-DOC (DFMx), 2016 WL 1251008, at *2 (C.D. Cal. Mar. 25, 2016) (collecting cases);

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William-Sonoma Inc. v. Friendfinder Inc., No. C 06-06572 JSW, 2007 WL 1140639, at *2 (N.D.

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Cal. Apr. 17, 2007).

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IV. DISCUSSION

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A. Alternate Service

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Plaintiff asks the Court to permit alternate service by email or, in the alternative, by

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publication. ECF No. 14 at 3. Plaintiff has met its burden to show “that the facts and

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circumstances of the present case necessitate[ ] the district court’s intervention.” Rio Props., 284

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F.3d at 1016. Plaintiff undertook a series of escalating efforts to effect service, including using

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addresses provided by Chou himself, addresses obtained through third parties, and an address

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identified by a private investigator. ECF No. 14 at 3–5. In the context of service within the

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United States, “two or three attempts at personal service at a proper place should fully satisfy the

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requirement of reasonable diligence and allow substituted service to be made.” Lagree

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Technologies, Inc. v. Spartacus 20th L.P., No. 17-cv-00795-JST, 2017 WL 1374598, at *2 (N.D.

1 Cal. Apr. 17, 2017) (quoting Trackman v. Kenney, at 187 Cal. App. 4th 175, 185 (2010)).

2 Plaintiff first attempted service at the Canadian address Chou provided in his DMCA

3 counter-notification by mailing the complaint and waiver of summons and, after no response, by

4 sending the summons and complaint via FedEx. ECF No. 14-1 at 2. These efforts, which

5 complied with the Hague Convention, were reasonably calculated to provide notice because they

6 relied on an address Chou himself supplied and employed an international courier capable of

7 delivering judicial documents to Canada, a Hague Convention signatory that has not objected to

8 service by postal channels. Hague Convention art. 10.

9 After those attempts failed, Plaintiff learned from Substack that Chou had relocated to

10 Oman and attempted service at the address provided, again via FedEx. Id. The shipment was

11 directed to the city, neighborhood, and building identified by Substack but contained a minor

12 formatting error, omitting a comma between the city and country name. ECF No. 14 at 3. FedEx

13 later reported that the address was “incorrect,” without further explanation, and delivery could not

14 be completed. Id. at 4; ECF No. 14-1 at 3. Chou asserts this resulted from Plaintiff’s improper

15 addressing; however, absent any explanation from FedEx, that assertion is speculative. Even if the

16 Court does not consider this a valid service attempt, it nonetheless demonstrates Plaintiff’s

17 diligence in attempting to locate and serve Chou.

18 After that attempt failed, Plaintiff retained an investigator, who identified an additional

19 address in Canada associated with an individual named Tony Chou. ECF No. 14 at 4; ECF No.

20 14-1 at 3. Plaintiff sent the summons and complaint to that address but received no response.

21 Plaintiff also attempted service electronically by emailing the summons, complaint, and a request

22 for waiver of service to the contact email address listed on Chou’s website. Id. Chou did not

23 respond. Id.

24 Chou’s assertions that any failure of service resulted from Plaintiff’s handling or

25 addressing errors are conclusory and unsupported. ECF No. 20 at 3. Plaintiff has exercised due

26 diligence by making five service attempts.

27 These service efforts occurred after Chou’s DMCA counter-notification. In that counter-

1 service of process. Chou now asserts that any consent to jurisdiction or acceptance of service

2 provided by his counter-notification was temporary. ECF No. 20 at 2–3. That argument misreads

3 the statute. Under 17 U.S.C. § 512(g)(3), a counter-notification must include “a statement that the

4 subscriber consents to the jurisdiction of the Federal District Court” and “will accept service of

5 process from the person who provided notification” of the alleged infringement. 17 U.S.C.

6 § 512(g)(3)(D). After a counter-notification is submitted, the service provider may restore the

7 challenged material unless the copyright holder files an infringement action within the statutory

8 restoration period. Id. § 512(g)(2)(C). Nothing in Section 512(g)(3), however, limits the

9 subscriber’s consent to jurisdiction or acceptance of service to that restoration period. Rather, the

10 statute requires consent to jurisdiction and acceptance of service as a condition of submitting a

11 counter-notification.

12 Here, email service is not prohibited by international agreement and is reasonably

13 calculated to provide notice. Toyo Tire & Rubber Co., No. 8:15-cv-0246-DOC (DFMx), 2016 WL

14 1251008, at *2. “The Hague Service Convention does not preclude the Court from authorizing

15 service of process via email.” Viral DRM LLC v. Margarita, No. 3:24-cv-00747-JSC, 2024 WL

5318835, at *1–3 (N.D. Cal. May 31, 2024). Moreover, the record reflects that Chou has access to

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the electronic means by which Plaintiff seeks to effect service. The Court therefore authorizes

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service by email pursuant to Rule 4(f)(3). See Xcentric Ventures, LLC v. Karsen, Ltd., No. CV 11-

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1055-PHX-FJM, 2011 WL 3156966, at *1 (D. Ariz. July 26, 2011) (authorizing service by email

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where the defendant consented via DCMA counter-notification to receive service at a Russian

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address, but the plaintiff’s attempt to serve defendant at that address was unsuccessful).

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B. Sanctions

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In its reply, Plaintiff requests that the Court impose sanctions because Chou cited

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nonexistent legal authority and failed to verify the accuracy of his citations prior to filing. ECF

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No. 19. While the Court agrees that Chou’s filing was irresponsible, it disagrees that sanctions are

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warranted.

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As a threshold matter, a party may not seek sanctions for the first time in a reply brief, and

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any such request must be raised in a separately filed motion so that the opposing party has notice

1 and an opportunity to be heard. Civil L.R. 7-8; So v. Land Base, LLC, No. CV 08-3336 DDP

2 (AGRx), 2010 WL 11519272, at *1 (C.D. Cal. June 9, 2010) (“A request for sanctions cannot be

3 made for the first time in a reply brief.”); Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d

4 770, 784 n.11 (9th Cir. 1983) (sanctions require notice and an opportunity to be heard); Lopez v.

Banuelos, No. 1:11-CV-00466 AWI JLT, 2013 WL 4815699, at *9 (E.D. Cal. Sept. 6, 2013)

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(“[T]he time to make a request for monetary sanctions is not in reply briefs.”). The Court,

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however, retains inherent authority to address misconduct that affects the integrity of judicial

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proceedings and to determine whether corrective measures are appropriate. See Goodyear Tire &

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Rubber Co. v. Haeger, 581 U.S. 101, 107 (2017).

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After Plaintiff identified the nonexistent or “hallucinated” citations, Chou filed a notice of

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errata removing the cited authorities from his opposition. ECF No. 25 at 2. Nonetheless, the

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submission of inaccurate legal authority unnecessarily consumed the resources of both Plaintiff

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and the Court. See Mata v. Avianca, Inc., 678 F. Supp. 3d 443, 448–49 (S.D.N.Y. 2023); ECF

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Nos. 19, 25, 26. In cases involving pro se litigants, however, in the absence of bad faith, courts

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have issued warnings and denied opportunities to amend the pleadings in lieu of sanctions. See

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Kruglyak v. Home Depot U.S.A., Inc., 774 F. Supp. 3d 767, 772 (W.D. Va. 2025) (citing Haines v.

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Kerner, 404 U.S. 519, 520 (1972)). The Court finds no evidence of bad faith and concludes that

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monetary sanctions are not warranted.

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Going forward, Chou shall verify the accuracy of legal authorities cited in his filings.

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C. Motion for Sur-Reply

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Chou seeks leave to file a sur-reply to address Plaintiff’s reply to his opposition. ECF No.

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26-2. “Parties do not have the right to file sur[-]replies and . . . [t]he Court generally views

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motions for leave to file a sur[-]reply with disfavor.” Garcia v. Biter, 195 F. Supp. 3d 1131,

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1133–34 (E.D. Cal. 2016) (citing Hill v. England, No. CVF05869 REC TAG, 2005 WL 3031136,

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at *1 (E.D. Cal. 2005)). “Although the court may in its discretion permit the filing of a sur-reply,

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this discretion should be exercised in favor of allowing a sur-reply only where a valid reason for

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such additional briefing exists, such as where the movant raises new arguments in its reply

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] Cal. Nov. 15, 2024) (citation and quotation omitted).

2 Plaintiffs reply did not raise any new substantive arguments, and although Plaintiff used

3 || the reply to request sanctions, the Court has denied that request. ECF No. 19. Aside from

4 || addressing the sanctions request, Chou’s proposed sur-reply retreads ground covered in the

5 opposition. ECF Nos. 24, 26.

6 Accordingly, Chou’s motion for leave to file a sur-reply is DENIED.

7 CONCLUSION

8 Plaintiff's motion for alternate service is GRANTED. Plaintiff may serve Defendant by

9 || publication and at its email address — contact@subutrade.com — by including this Order with other

10 || papers served.

1] IT IS SO ORDERED.

12 || Dated: January 26, 2026

‘

,O

8 JON S. TIGA

14 nited States District Judge

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