United States v. Thu Phan Dinh, Tran Khanh and Nguyen Duy Toan — Order (M.D. Fla., Document 8)

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An Order in United States v. Thu Phan Dinh, Tran Khanh, and Nguyen Duy Toan, Case No. 8:20-cv-1794-T-36AAS, in the U.S. District Court for the Middle District of Florida, Tampa Division, entered August 4, 2020 as Document 8. It grants the United States' motion (Doc. 2) for alternate service of process by email on the defendants, whose locations are unknown. The order recounts that the United States seeks injunctive relief under 18 U.S.C. § 1345, alleging a wire fraud scheme in which the defendants registered hundreds of websites posing as online stores for health and safety items scarce because of the COVID-19 pandemic, took PayPal payments and delivered nothing. It finds the Hague Convention does not apply where locations are unknown and that email service under Rule 4(f)(3) satisfies due process.

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“United States v. Thu Phan Dinh, Tran Khanh and Nguyen Duy Toan — Order (M.D. Fla., Document 8).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/order-no-8-20-cv-01794-dkt-8-m-d-fla-ce170b4f1c/, SHA-256 cb5ed6a6330842add8c5c840bfded8bbdda3d1d8f5816fee9275f3cd5d4ad1ed.

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Case 8:20-cv-01794-CEH-AAS Document 8 Filed 08/04/20 Page 1 of 6 PageID 218

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES,

Plaintiff,

v. Case No. 8:20-cv-1794-T-36AAS

THU PHAN DINH, TRAN
KHANH, and NGUYEN
DUY TOAN,

Defendants.
___________________________________/

ORDER

The plaintiff, the United States, seeks an order authorizing alternate service,

by email, on the defendants, Thu Phan Dinh, Tran Khanh, and Nguyen Duy Toan.

(Doc. 2).

I. BACKGROUND

The United States seeks injunctive relief under 18 U.S.C. § 1345 against the

defendants. (Doc. 1, ¶¶ 33–36). The United States alleges the defendants violated,

are violating and are about to violate 18 U.S.C. §§ 1343, 1349 “by executing schemes

and artifices to defraud for obtaining money or property by means of false or

fraudulent representation with the intent to defraud, and, in so doing, use wire

communications.” (Id. at ¶ 34).

The complaint alleges the defendants are engaged in a wire fraud scheme by

selling products—most recently, health and safety items that became scarce because

of the COVID-19 pandemic. (Id. at ¶¶ 20–21). The defendants created websites

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Case 8:20-cv-01794-CEH-AAS Document 8 Filed 08/04/20 Page 2 of 6 PageID 219

fraudulently claiming to be online e-commerce stores and requiring the consumers to

pay for the goods through PayPal, but once the consumers paid, no additional

information was provided, and the consumers never received the products. (Id. at ¶¶

22–24). The defendants registered hundreds of websites with registrar GoDaddy.com.

(Id. at ¶ 26).

In the current motion for alternate service, the United States asserts the

defendants’ current locations are unknown, but Mr. Khanh and Mr. Toan may be in

Vietnam. 1 (Doc. 2, pp. 4–6). The United States explains the email addresses provided

to GoDaddy.com to set up the websites are the same ones used to set up the PayPal

accounts. 2 (Id. at p. 6). The United States supports this contention with its

declaration from Special Agent Felix Romero with United States Immigration and

Customs Enforcement, Homeland Security Investigations. (Doc. 4-1). From emails

obtained through search warrants, the defendants are actively using these email

addresses to correspond with each other: thupdph04900@gmail.com,

namkhanh1605@gmail.com, and toan.nguyenduy@gmail.com. (Id. at ¶ 86).

II. LEGAL STANDARD

The Federal Rules of Civil Procedure outline the procedure for service upon an

individual located outside the United States. Fed. R. Civ. P. 4(f). The Rule provides:

Unless federal law provides otherwise, an individual [. . .] may be served

1 The United States intends to attempt service on Mr. Khanh and Mr. Toan at the

addresses listed with GoDaddy.com. (Doc. 2, p. 13).

2 Mr. Toan provided a different email address to GoDaddy.com than the one provided

to PayPal. (Doc. 2, p. 6). The United States also seeks to include that other email
address (vinh.macthe@gmail.com) in its request to serve by email. (Id. at p. 7).
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Case 8:20-cv-01794-CEH-AAS Document 8 Filed 08/04/20 Page 3 of 6 PageID 220

at a place not within any judicial district of the United States:

(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 Abroad of Judicial and
Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an
international agreement allows but does not specify other means,
by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in
that country in an action in its courts of general
jurisdiction;

(B) as the foreign authority directs in response to a letter
rogatory or letter of request; or

(C) unless prohibited by the foreign country’s law, by:
(i) delivering a copy of the summons and of the
complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses
and sends to the individual and that requires a
signed receipt; or

(3) by other means not prohibited by international agreement, as
the court orders.

Fed. R. Civ. P. 4(f). Without an “internationally agreed means reasonably calculated

to give notice such as those means authorized by the Hague Convention,” the court

must look at the remaining provisions of subsection 4(f) of the Federal Rules of Civil

Procedure. Prewitt Enters. Inc., c. Org. of Petroleum Exporting Countries, 353 F.3d

916, 922–23 (11th Cir. 2003).

Compliance with the Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents (Hague Convention) is “mandatory in all cases to which it

applies.” Volkswagen AG v. Schlunk, 486 U.S. 694, 705 (1988). The Hague Convention

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Case 8:20-cv-01794-CEH-AAS Document 8 Filed 08/04/20 Page 4 of 6 PageID 221

“requires each state to establish a central authority to receive requests for service of

documents from other countries.” Id. at 698.

Once a central authority receives a request in the proper form, it must
serve the documents by a method prescribed by the internal law of the
receiving state or by a method designated by the requester and
compatible with that law. The central authority must then provide a
certificate of service that conforms to a specified model. A state also may
consent to methods of service within its boundaries other than a request
to its central authority.

Id. at 699 (internal citations omitted). But the Hague Convention does not apply when

the defendant’s location is unknown. See Chanel, Inc. v. Zhixian, No. 10–CV–60585,

2010 WL 1740695, at *2 (S.D. Fla. Apr. 29, 2010).

III. ANALYSIS

Since the defendants’ locations are not known, the court can skip the analysis

on whether the Hague Convention allows email service. The court can exercise its

discretion in ordering alternate method of service under Rule 4(f)(3) that fulfills the

due process requirements. Chanel, Inc. v. Lin, No. 08–23490–CIV, 2009 WL 1034627,

at *1 (S.D. Fla. Apr. 16, 2009). In exercising its discretion under Rule 4(f)(3), the court

is limited to approving a method of service that fulfills constitutional due process

requirements in which the party receives “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. Cent. Hanover Bank &

Trust Co., 339 U.S. 306, 314 (1950). Courts find that service by email comports with

due process when standard service of process cannot be achieved because all of the

addresses used to register websites and domain names are “false, incomplete, or

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Case 8:20-cv-01794-CEH-AAS Document 8 Filed 08/04/20 Page 5 of 6 PageID 222

invalid for service of process.” Zhixian, 2010 WL 1740695, at *1; see also Rio Props.,

Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1018 (9th Cir. 2002) (“[W]hen faced with an

international e-business scofflaw, playing hide-and-seek with the federal court, e-

mail may be the only means of effecting service of process.”).

Here, the United States proposes to serve Mr. Dinh at

thupdph04900@gmail.com, Mr. Khanh at namkhanh1605@gmail.com, and Mr. Toan

at vinh.macthe@gmail.com and toan.nguyenduy@gmail.com. The United States seeks

to use these email addresses because the United States received email records

showing the defendants actively using these email addresses to communicate among

themselves. (See Doc. 4-1) (Special Agent Romero’s declaration discussing the Google

records about the email accounts used to register web domains with GoDaddy.com).

Thus, service to theses email addresses is reasonably calculated to apprise the

defendants of this litigation and to allow the defendants to present their objections,

fulfilling the due process requirements.

IV. CONCLUSION

Because the defendants’ locations are unknown and the court can exercise its

discretion in ordering alternate method of service, the United States’ motion for an

order authorizing alternate service of process on the defendants (Doc. 2) is

GRANTED. The United States may serve Mr. Dinh at thupdph04900@gmail.com,

Mr. Khanh at namkhanh1605@gmail.com, and Mr. Toan at vinh.macthe@gmail.com

and toan.nguyenduy@gmail.com by email by sending (1) the complaint; (2) the

summons; (3) the civil cover sheet; (4) the motion for temporary restraining order and

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order to show cause why a preliminary injunction should not be issued; and (5) a copy

of this order to those email addresses.

ORDERED in Tampa, Florida, on August 4, 2020.

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