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9 Filed
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of 19 1 of 19
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UNITED
UNITED STATES
STATES DISTRICT
DISTRICTCOURT
COURT
DISTRICT
DISTRICT OF
OFNEW
NEW JERSEY
JERSEY
ROLEX
WATCHU.S.A.,
U.S.A., INC.,
ROLEX WATCH
INC.,
Plaintiff,
Plaintiff,
v.
v.
ALEXANDER
ROZENFELD,et
et al.,
ALEXANDER ROZENFELD,
al.,
Defendants.
Defendants.
))
))
))
))
))
))
))
))
))
))
Case No.
No.06-0799
06-0799
(PGS)
(PGS)
___________________________________________________________
MEMORANDUM
LAWIN
IN SUPPORT
MEMORANDUM OFOFLAW
SUPPORT OF
OF
PLAINTIFF’S
MOTION
FOR
SUBSTITUTED
SERVICE
PLAINTIFF’S MOTION FOR SUBSTITUTED SERVICEAND
AND
FOR
FOR A PRE-JUDGMENT
PRE-JUDGMENT WRIT
WRIT OF
OFATTACHMENT
ATTACHMENT
___________________________________________________________
BRAGAR,
EAGEL,
P.C.
BRAGAR, WWEXLER
EXLER & &
EAGEL
, P.C.
Ronald
Coleman
(RC-3875)
RonaldD.D.
Coleman
(RC-3875)
One Gateway
GatewayCenter
Center
Suite
Suite2600
2600
Newark,
07102
Newark,NJNJ
07102
(973)
(973)471-4010
471-4010
OF
OF COUNSEL:
COUNSEL:
Brian
Brokate
BrianW.W.
Brokate
John
Macaluso
John Macaluso
GIBNEY,
LLP
ANTHONY && FFLAHERTY,
LAHERTY, LLP
GIBNEY, ANTHONY
665
Avenue
665 Fifth
Fifth
Avenue
New
NYNY
10022
New York,
York,
10022
(212)
(212)688-5151
688-5151
Attorneys
for Plaintiff
Attorneys
for Plaintiff
Rolex
U.S.A.,
Inc. Inc.
RolexWatch
Watch
U.S.A.,
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PRELIMINARY STATEMENT
STATEMENT
Plaintiff
Rolex Rolex
Watch U.S.A.,
submits
Plaintiff
WatchInc.U.S.A., Inc. (“Rolex”)
(“Rolex”)
submits
this
memorandum
of law
support
its motion
(1) an
this
memorandum
of inlaw
in of
support
offor:its
motion for: (1) an
order
substituted
service of the Summons
orderdirecting
directing
substituted
service and
of
the
Summons
and
Complaint
in this
all defendants,
(2) a writ
Complaint
in matter
this on
matter
on alland
defendants,
and (2) a writ
of
on certain
real property
jointly
owned byjointly
two
ofattachment
attachment
on certain
real
property
owned by two
of
principal
named defendants,
property which those
ofthethe
principal
named defendants,
property
which
those
defendants
usedused
in furtherance
of the counterfeiting
and counterfeiting and
defendants
in furtherance
of the
other
activities complained
of herein.
otherillegal
illegal
activities
complained
of
The
herein.
defendants
are are
believed
to be Russian
who are
defendants
believed
to nationals,
be Russian
nationals, who are
engaged
an extensive
Internet trademark
counterfeiting
engagedin in
an extensive
Internet
trademark counterfeiting
enterprise
involving
counterfeit
Rolex watchesRolex
and who
have
enterprise
involving
counterfeit
watches
and who have
evidently
left the
country.
evidently
left
the country.
Rolex
an order
Rolexrequests
requests
an directing
order substituted
directingservice
substituted service
by
and registered
mail to defendants’
Newdefendants’
Jersey
by standard
standard
and registered
mail to
New Jersey
and
by publication
and by email,
and by
for email, and for
and Moscow
Moscowaddresses,
addresses,
by publication
and
a writ
of attachment
on certain
property jointly
writ
of attachment
onreal
certain
real owned
property jointly owned
by
Alexander
and Victoria
located
at
by defendants
defendants
Alexander
andRozenfeld
Victoria
Rozenfeld
located at
56 Westbury
Drive,
Sparta, Sparta,
New Jersey,
which
is both the
Westbury
Drive,
New
Jersey,
which is both the
only
asset
of defendants
in this Districtin
andthis
from District and from
onlyknown
known
asset
of defendants
which,
information
and belief, defendants
have
which,uponupon
information
and belief,
conducted
their counterfeiting
and other illicit
conducted
their
counterfeiting
2
and
defendants
other
have
illicit
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operations,
including
the running the
of a counterfeiting
operations,
including
running of
a
counterfeiting
operation
under
the name
Venture
Capital, Inc..
operation
under
the RV
name
RV Venture
Capital, Inc..
FACTS1
FACTS1
Rolex
distributor and
warrantor in and warrantor in
Rolexis the
is exclusive
the exclusive
distributor
the
States
of Rolexof
watches,
of which bear
oneof which bear one
theUnited
United
States
Rolexallwatches,
all
or
of Rolex’s
Trademarks
as defined as
in the
Complaint.
ormore
more
of Rolex’s
Trademarks
defined
in the Complaint.
Rolex
are identified
the trade namebyand the
Rolexwatches
watches
are by
identified
trade
trademark
ROLEX
and one
more of
trademark
ROLEX
and or one
orRolex’s
moretrademarks.
of Rolex’s
name
and
trademarks.
Rolex
for assembling,
finishing, marketing
Rolexis responsible
is responsible
for assembling,
finishing, marketing
and
in interstate
high quality
Rolex high
and selling
selling
in commerce
interstate
commerce
quality
Rolex
watches,
watch
bracelets
and related
products
for men
and
watches,
watch
bracelets
and
related
products
for men and
women.
Innumerable
courts
have determined
that the Rolex that
Innumerable
courts
have determined
Trademarks
arbitrary
and fanciful marks
are
Trademarksare are
arbitrary
and that
fanciful
marks
the
that
Rolex
are
entitled
to theto
highest
of protection
afforded
entitled
the level
highest
level
of by
protection afforded by
law.
RolexRolex
Trademarks
are associated
with Rolex in the
law.TheThe
Trademarks
are associated
with Rolex in the
minds
consumers,
the public
the trade.and
Rolex
and trade.
mindsof of
consumers,
theandpublic
the
Rolex and
its
predecessors
have used
the used
Rolex Trademarks
for Trademarks
many
its
predecessors
have
the Rolex
for many
years
andand
in connection
with Rolex watches
and related
yearsonon
in connection
with Rolex
watches and related
products.
products.
The Rolex
Trademarks
identify high
quality
Rolex
Trademarks
identify
high
quality
products
originating
with Rolex.
products
originating
with Rolex.
1
1 All
All the
set set
forthforth
hereinherein
are based
the Certification
of
thefacts
facts
are on
based
on the Certification
of
Ronald
D.
Coleman,
Esq.,
filed
herewith
(“Coleman
Cert.”).
Ronald D. Coleman, Esq., filed herewith (“Coleman Cert.”).
3
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Based
Rolex’s
extensive
advertising, advertising,
sales and
Based upon
upon
Rolex’s
extensive
sales and
the
popularity
of Rolex’s products,
the Rolex products,
thewidewide
popularity
of Rolex’s
Trademarks
acquired
secondarysecondary
meaning so that
any
Trademarkshave
have
acquired
meaning
the
so
Rolex
that
any
product
andand
advertisement
bearing such
markssuch
is immediately
product
advertisement
bearing
marks is immediately
associated
by consumers,
the public
andpublic
the tradeand
as being
associated
by consumers,
the
the trade as being
a product
and and
affiliate
of Rolex. Rolex
gone to
great has gone to great
product
affiliate
of has
Rolex.
Rolex
lengths
to protect
name and its
enforcename
the Rolex
lengths
to its
protect
and
enforce
Trademarks.
The The
Rolex Rolex
Trademarks
are in full force
Trademarks.
Trademarks
areandin
full
the
Rolex
force
and
effect
and,and,
with thewith
exception
DAY-DATE, have
effect
the of exception
of become
DAY-DATE, have become
incontestable
pursuant
to 15 U.S.C.
§ 1065.
incontestable
pursuant
to 15
U.S.C. § 1065.
On
date,date,
but evidently
the last within the last
On some
someunknown
unknown
but within
evidently
few
defendants
began selling,
offering
for sale, offering
few years,
years,
defendants
began
selling,
for
sale,
distributing,
promoting
and advertising
watchesnon-Rolex watches
distributing,
promoting
and non-Rolex
advertising
in
in
interstate
interstate
commerce
commerce
bearing
bearing
counterfeits
counterfeits
and
and
infringements
of theof
Rolex
The spurious marks
infringements
theTrademarks.
Rolex Trademarks.
The spurious marks
or
used byused
defendants
in interstate commerce
ordesignations
designations
by defendants
in interstate commerce
are
with, or substantially
areidentical
identical
with, orindistinguishable
substantially
indistinguishable
from,
RolexRolex
Trademarks
on goods covered
by thecovered
Rolex
from,thethe
Trademarks
on goods
by the Rolex
Trademarks.
Their websites
and
Trademarks.
Their www.replicamaker.com
websites
www.replicamaker.com
www.replicaexpert.us
www.replicaexpert.us
(the
(the
“Websites”)
have have
been used
to
“Websites”)
been
used
and
to
advertise,
distribute,
promote, offer
for sale, and
sell for sale, and sell
advertise,
distribute,
promote,
offer
watches
counterfeits
of one or more
the Rolex
watchesbearing
bearing
counterfeits
of ofone
or more of the Rolex
Trademarks.
Trademarks.
4
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As set
out out
in thein
Firstthe
Amended
Complaint
filedComplaint
July
set
First
Amended
filed July
27,
27,
2006, on on
or about
2006,
or July
about
July
25,
25,
2005,
counselcounsel
2005,Rolex’s
Rolex’s
discovered
thatthat
the Registrant
information for
the Website for the Website
discovered
the Registrant
information
listed
Michael
Kavtaskin
in Russia and
e-mail address
listed
Michael
Kavtaskin
in the
Russia
and the e-mail address
[email protected].
[email protected].
On
On August
August
2,
2,
2005,
counselcounsel
2005,Rolex’s
Rolex’s
wrote
for www.replicamaker.com,
Add2Net,
Add2Net,
wroteto the
to web
thehost
web
host for www.replicamaker.com,
Inc.
- Lunarpages
Division,
La Habra
Blvd., LaBlvd., La
Inc.
–
Lunarpages
Division, 100
100 East
East
La Habra
Habra, California,
concerning concerning
the Website, which
Habra,
California,
thewasWebsite,
offering for sale
Rolex watches. Rolex
Plaintiff’swatches.
offering
forcounterfeit
sale counterfeit
which
was
Plaintiff’s
counsel diddid
not receive
a responseato response
its August to its August 2,
counsel
not receive
2, 2005
2005
letter.
letter.
On August
Rolex’sRolex’s
counsel wrote
Kavtaskin
via Kavtaskin via
On
August3, 2005,
3, 2005,
counsel
wrote
e-mail to [email protected],
informing him of the
e-mail
to
[email protected],
informing
him
of
the
illegality
and potential
for the sale
of
illegality
and penalties
potential
penalties
the
sale
of
counterfeit
counterfeit
Rolex
Rolex
merchandise
merchandise
for
from
from
Plaintiff’s
counselcounsel
did not receive
to its
Plaintiff’s
dida response
not receive
a
the
the
Website.
Website.
response
to
its
August
2005
e-mail.
August3,3,
2005
e-mail.
On
investigator
placed an placed an
On November
November 7,
7, 2005,
2005,Rolex’s
Rolex’s
investigator
order
a Rolex
on www.replicamaker.com.
orderfor for
a Daytona
Rolex watch
Daytona
watch on www.replicamaker.com.
He
received
received
a
confirmation
confirmation
[email protected]
indicating
that his MasterCard
indicating
that
[email protected]
email
email
his
from
from
MasterCard
would bebe
charged
Significantly,
for purposes for
of
would
charged $195.00.
$195.00.
Significantly,
purposes of
this motion,
the confirmation
email includedemail
the address:
this
motion,
the confirmation
included the address:
5
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RV
Capital,
56 Westbury
Drive, Sparta,
Sussex,
New
RV Venture
Venture
Capital,
56 Westbury
Drive,
Sparta,
Sussex, New
Jersey,
United
States, States,
Jersey,
United
Fax:
Fax:
07871-2500,
Phone:
07871-2500,
Phone:
530-690-8301,
530-690-8301,
530-869-7983,
Email:
[email protected].
530-869-7983,
Email:
[email protected].
The
Website
displayed
as a point
address
RV the address RV
Websitealso
also
displayed
asofacontact
pointtheof
contact
Venture
Inc.
VentureCapital,
Capital,
Jersey,
Phone:
Jersey,
Phone:
56 Westbury
Drive, Drive,
Sparta, New
Westbury
Sparta,
Inc.
530-690-8301,
Fax: Fax:
530-690-8301,
New
530-869-7983,
Email:Email:
530-869-7983,
[email protected].
[email protected].
On
investigator
received a received a
On November
November 8,
8, 2005,
2005,Rolex’s
Rolex’s
investigator
PayPal
that his that his $195.00
beenbeen
received
by
PayPalconfirmation
confirmation
$195.00had
had
received
by
RV
RV
Venture
Venture
Capital,
Capital,
[email protected],
[email protected],
[email protected].
[email protected].
Inc.
Inc.
with
with
at
at
a
email
email
contact
contact
On
On November
November
15,
15,
address
address
email
email
2005,
2005,
of
of
Rolex’s
Rolex’s
investigator
received
an email an
fromemail
[email protected]
investigator
received
from [email protected]
confirming
his order
payment.
email was signed
confirming
his and
order
andThe
payment.
The email was signed
Victoria
Rozenfeld
and included
Sparta, Newthe
Jersey
Victoria
Rozenfeld
and theincluded
Sparta,
New
Jersey
address,
which
publicpublic
records indicate
is jointly
owned is
by jointly owned by
address,
which
records
indicate
Victoria
and and
Alexander
Rozenfeld.
Victoria
Alexander
Rozenfeld.
On
2005, Rolex’s
investigator
received a received a
On November
November 27,
27, 2005,
Rolex’s
investigator
package
Russia.
The returnThe
address
on thisaddress
package on this package
packagefrom
from
Russia.
return
was Prok
Alexander,
St. Acad.St.
Anohina,
Prok
Alexander,
Acad.
38-1-64,
Moscow,
38-1-64,
Moscow,
Anohina,
119602,
the same
under the
name
119602,Russia,
Russia,
theaddress
samelisted
address
listed
Michael
in the WHOIS
MichaelKavtaskin
Kavtaskin
ininformation
the for
WHOIS
6
under
the
information
name
for
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www.replicamaker.com.
Inside the
package
a counterfeit
Inside
thewas
package
was a counterfeit
www.replicamaker.com.
Rolex
Cosmograph.
RolexDaytona
Daytona
Cosmograph.
On
aboutabout
November
On or or
November
30,
30,
2005,
counsel counsel
2005,Rolex’s
Rolex’s
followed
an email
string onstring
an Internet
board and
followed
an email
on message
an Internet
message board and
determined
thatthat
an individual
posted a message
indicating
determined
an individual
posted
a message indicating
that
she was
websiteoperating
called
thathe orhe
or operating
she a was
a
website
www.wisecampaign.com
in connection
with anotherwith
website,
www.wisecampaign.com
in connection
another
called
website,
www.replicamaker.com.
www.replicamaker.com.
Rolex’s
counsel
further discovered
the WHOIS that
Rolex’s
counsel
further that
discovered
the
WHOIS
information
for thefor
website
www.wisecampaign.com
listed
information
the
website www.wisecampaign.com
listed
Viktoriya
Rozenfeld
as the administrative
contact and a
Viktoriya
Rozenfeld
as the administrative
and
contact
a
location
of Sparta,
New JerseyNew
alongJersey
with the telephone
location
of Sparta,
along with the telephone
number
Public Public
records link
this telephone
number 973-726-3535.
973-726-3535.
records
link this telephone
number
the address
number to to
the address
“56
Drive,Drive,
Sparta, New
“56Westbury
Westbury
Sparta,
New
Jersey
Alexandre
Rozenfeld,”
the same address
Jersey 07871-2500,
07871-2500,
Alexandre
Rozenfeld,”
the same address
listed
on the
listed
on Website.
the Website.
Additionally,
Rolex’sRolex’s
counsel also
discovered
thatdiscovered
the
Additionally,
counsel
also
that the
WHOIS
for the website
www.wisecampaign.com
WHOIS information
information
for the
website www.wisecampaign.com
listed
the email
addressaddress
[email protected]
under the nameunder the name
listed
the email
[email protected]
Viktoriya
Rozenfeld.
On December
7, 2005, eBay.com
seller eBay.com seller
Viktoriya
Rozenfeld.
On December
7, 2005,
“rvcapital”
posted posted
an auction an
for a auction
counterfeit Rolex
“rvcapital”
for a
counterfeit
Cosmograph
under the
title
CosmographDaytona
Daytona
under
“Roleks
Daytona”.
“Roleks
Daytona”.
the
title
Rolex
eBay.com
to a Personal
Information Request
for
eBay.comresponded
responded
to a Personal
Information
Request for
7
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the
theseller
seller
information:
information:
“rvcapital”
with the with
following the
accountfollowing
“rvcapital”
Viktoriya
Rozenfeld,
Viktoriya
Rozenfeld,
account
56 Westbury
Drive, Drive,
Westbury
Sparta,
NewNew
Jersey
Email:
Sparta,
Jersey 07871,
07871,Telephone:
Telephone: 973-726-3535,
973-726-3535,
Email:
[email protected].
[email protected].
On
On December
December
19,
19,
2005,
counsel counsel
wrote to
2005,Rolex’s
Rolex’s
Defendants
via e-mail
first class mail
Defendants
via ande-mail
andto
first
[email protected]
and RVand
Venture
Inc.,
[email protected]
RV Capital,
Venture
class
Capital,
wrote
to
mail
to
Inc.,
56
Westbury
Sparta,
New Jersey
informing
them
of
WestburyDrive,
Drive,
Sparta,
New07871,
Jersey
07871,
informing
them of
the
and potential
for the sale
of
theillegality
illegality
andpenalties
potential
penalties
for
the
sale
of
counterfeit
RolexRolex
merchandise
from the Website.
Plaintiff’s
counterfeit
merchandise
from the
Website. Plaintiff’s
counsel
not receive
a response
its December
counseldiddid
not receive
a to
response
to 19,
its2005
December 19, 2005
letter.
letter.
On
On March
March
21,
21,
2006,
investigator
discovered
2006,Rolex’s
Rolex’s
investigator
that
was directing was
users to directing
thatwww.replicamaker.com
www.replicamaker.com
www.replicaexpert.us.
www.replicaexpert.us.
discovered
users
Like
this
Likewww.replicamaker.com,
www.replicamaker.com,
to
this
website
is being
used to advertise,
promote,distribute, promote,
website
is being
used todistribute,
advertise,
offer
for for
sale and
selland
watches
bearing
counterfeits
of one
offer
sale
sell
watches
bearing
counterfeits of one
or
the Rolex
Trademarks.
ormore
moreof of
the Rolex
Trademarks.
Rolex’s
investigator
promptly contacted
Lunarpages,
Rolex’s
investigator
promptly
contacted
the
host for
www.replicaexpert.us.
theweb
web
host
for www.replicaexpert.us.
Lunarpages,
The web
hosthost
web
provided thethe
following
contact information
the account: for the account:
provided
following
contact for
information
Victoria Rozenfeld,
Drive,
Sparta New
Jersey.
Victoria
Rozenfeld, 56 Westbury
Westbury
Drive,
Sparta
New Jersey.
The e-mail
address
for thefor
account
[email protected].
e-mail
address
the isaccount
is [email protected].
8
Case 2:06-cv-00799-PGS-RJH Document
9 Filed
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Page 9 Page
of 19 9 of 19
Document
9 Filed
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On
9, 2006,
Rolex’s Rolex’s
investigatorinvestigator
placed an order placed an order
On April
April
9, 2006,
for
GM Master
II watchII
(“Counterfeit
Watch 2”) from Watch 2”) from
fora Rolex
a Rolex
GM Master
watch (“Counterfeit
www.replicaexpert.us.
A confirmation
e-mail was sent to
www.replicaexpert.us.
A confirmation
e-mail was sent to
the
the
investigator’s
investigator’s
e-mail
e-mail
account
account
from
from
[email protected].
The e-mailThe
included
the telephone
[email protected].
e-mail
included the telephone
number
number
530-690-8301
and the
530-690-8301
andfax number
the fax
number
530-869-7983.
530-869-7983.
Counterfeit Watch
on Aprilon April 24,
Counterfeit
Watch 2 was
wasdelivered
delivered
24, 2006.
2006.The The
return address
on the on
package
listed as was
Arutjan,
return
address
the was
package
listed as Arutjan, 87
Phadeera,
4-14,
Russia
investigator’s
Phadeera,
4-14,Moscow,
Moscow,
Russia 125047.
125047.The The
investigator’s
Paypal account
was charged
RV Venture
Capital Capital
Paypal
account
was charged $429.00
$429.00by by
RV Venture
for thethe
purchase.
for
purchase.
Rolex filed
the Complaint
in this matter
February
Rolex
filed
the Complaint
inonthis
matter on February
28, 2006,
andand
filed the
First the
Amended
Complaint
on July
27,
28,
2006,
filed
First
Amended
Complaint
on July 27,
2006, seeking
equitable
and monetary
because
of the because of the
2006,
seeking
equitable
and relief
monetary
relief
harm caused
by defendants’
sale, distribution,
harm
caused
by defendants’
sale,promotion
distribution, promotion
and advertisement
of counterfeit
watches and infringing
and
advertisement
of counterfeit
watches onand infringing on
Rolex’s federally
registered
Rolex trademarks.
Rolex’s
federally
registered
Rolex trademarks.
Rolex
retained
Guaranteed
Subpoena Service,
Rolexthereafter
thereafter
retained
Guaranteed
Subpoena Service,
Inc.
(“Guaranteed”),
a process
serving company,
to serve
Inc.
(“Guaranteed”),
a process
serving
company, to serve
defendants at their
knownlast
residential
and business
defendants
at last
their
known
residential
and
address,
address,
Jersey.
56 Westbury
Drive, Drive,
Sparta, New
Jersey.
Westbury
Sparta,
New
business
.
Guaranteed attempted
to personally
serve the Defendants
on Defendants on
Guaranteed
attempted
to personally
serve the
March 16,
was was
unsuccessful.
Guaranteed’s
initial
March
16, 2006,
2006,butbut
unsuccessful.
Guaranteed’s
initial
9
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notice
to Rolex’s
counsel counsel
indicating its
inability to make
notice
to Rolex’s
indicating
its inability to make
service
is set
Exhibitas
E toExhibit
the Coleman
Cert.
service
is forth
setasforth
E to
the Coleman Cert.
Guaranteed
investigated,
at this office’s
Guaranteedthen
then
investigated,
at this office’s
request,
whether
defendants
had left forwarding
request,
whether
defendants
had leftinformation
forwarding information
before
and subsequently
reported back
that this,
beforemoving,
moving,
and subsequently
reported
back that this,
too,
unsuccessful.
Guaranteed
ultimately prepared
too,was
was
unsuccessful.
Guaranteed
ultimately prepared
Affidavits
of Diligence
for each offor
the suspects,
Affidavits
of Diligence
each ofwhich
the are
suspects, which are
attached
as as
Exhibit
E to theEColeman
FurtherCert. Further
attached
Exhibit
to theCert.
Coleman
investigation
indicates
that defendants
Rozenfeld
investigation
indicates
that Alexander
defendants
Alexander Rozenfeld
and
Rozenfeld
fled to Russia
have no plans
and Victoria
Victoria
Rozenfeld
fled and
to Russia
and to
have no plans to
return
to the
States, although
Rozenfelds’the Rozenfelds’
return
to United
the United
States,thealthough
former
is stillis
owned
by defendants
and Alexander and
formerresidence
residence
still
owned byAlexander
defendants
Victoria
Rozenfeld
and is presently
being utilized being
by
Victoria
Rozenfeld
and is presently
utilized by
someone believed
to beto
related
to those defendants.
believed
be related
to those defendants.
LEGAL ARGUMENT
ARGUMENT
I.
I.THE
THECOURT
COURT SHOULD
SHOULD GRANT
GRANT ROLEX’
ROLEX’ MOTION
MOTION FOR
FOR SUBSTITUTED
SUBSTITUTED
SERVICE
THE STANDARDS
SETOUT
OUT IN
IN Fed.R.4(f)(3)
SERVICE UNDER
UNDER THE
STANDARDS SET
Fed.R.4(f)(3)
Federal
RuleRule
of Civil Procedure
Federal
of Civil
Procedure
4(f)(3)
permits
4(f)(3)
permits
service on an
or corporation inora foreign
service
onindividual
an individual
corporation
in
a
foreign
country
“by . . ..means
not not
prohibited
by international
country
“by
means
prohibited
by international
agreement as as
maymay
be directed
by the court.”
Civ.
agreement
be directed
by Fed.
the R.court.”
Fed. R. Civ.
P. 4(f)(3).
It is not It
necessary
for anecessary
party to attempt
P.
4(f)(3).
is not
for a party to attempt
service pursuant
to Rules
or 4(f)(2)
before
service
pursuant
to4(f)(1)
Rules
4(f)(1)
orseeking
4(f)(2) before seeking
a court
order
under under
Rule 4(f)(3).
Properties, Inc.
v. Properties, Inc. v.
court
order
RuleRio
4(f)(3).
Rio
10
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Rio
Interlink,
RioInt’l
Int’l
Interlink, 284
284 F.3d
F.3d 1007,
1007, 1015
1015 (9th
(9thCir.Cir. 2002)
2002)
(“[N]o
language
in Rules
or 4(f)(2)
indicates
their
(“[N]o
language
in 4(f)(1)
Rules
4(f)(1)
or 4(f)(2)
indicates their
primacy,
andand
certainly
Rule
includes
no qualifiers
primacy,
certainly
Rule 4(f)(3)
4(f)(3)
includes
no qualifiers
or
which indicate
availability only
orlimitations
limitations
whichitsindicate
itsafter
availability only after
attempting
service…by
other means.”)
is not a
attempting
service…by
otherRussia
means.”)
Russia
is
not
a
signatory
to the
Therefore, Rolex
is not
signatory
toHague
the Convention.
Hague Convention.
Therefore,
Rolex is not
required
to serve
defendants
pursuant to Fed.
R. Civ. P.
required
to serve
defendants
pursuant
to Fed. R. Civ. P.
4(f)(1).
4(f)(1).
Forum
Group, Group,
LLC v. President
and President
Forum Financial
Financial
LLC v.
and
Fellows
of Harvard
College,College, 199
(D.Me.
Fellows
of Harvard
199 F.R.D.
F.R.D. 22,
22, 23 n.1
n.1 (D.Me.
2001).
2001).
To satisfy
due process,
method of service
satisfy
due the
process,
the method
of
service
directed
by the
be “reasonably
calculated, under
directed
by Court
the must
Court
must be “reasonably
calculated, under
all
thethe
circumstances,
to appriseto
interested
parties
of the
all
circumstances,
apprise
interested
parties of the
pendency
the action
affordand
them afford
an opportunity
pendencyof of
the and
action
themto an opportunity to
present
their
objections.”
Mullane v. Cent.
Hanover
& Hanover Bank &
present
their
objections.”
Mullane
v.Bank
Cent.
Trust
UnderUnder
TrustCo.,
Co., 339
339 U.S.
U.S. 306,
306, 314,
314, 70 S.Ct.
S.Ct. 652
652 (1950).
(1950).
Rule
Rule
4(f)(3),
courtscourts
have authorized
wide variety of a
4(f)(3),
have aauthorized
wide
substitute
meansmeans
of service,of
including
standard including
and
substitute
service,
variety
standard
registered
mail,mail,
publication,
facsimile andfacsimile
email. See SEC
registered
publication,
and email.
of
and
See SEC
v.
by by
v.Tome,
Tome, 833
833 F.3d
F.3d 1086,
1086, 1094
1094 (2d
(2dCir.
Cir. 1987)
1987) (service
(service
publication);
Smith v.
Islamicv.
Emirate,
2001Emirate,
WL 16582112001
at
publication);
Smith
Islamic
WL 1658211 at
*2-3
on fugitive
terrorist Osama
*2-3 (S.D.N.Y.
(S.D.N.Y. 2001);
2001); (service
(service
on fugitive
terrorist Osama
bin
by publication
for six weeksfor
in Afghani
binLaden
Laden
by publication
six and
weeks
11
in
Afghani
and
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Pakastani
newspapers
and on international
Pakastani
newspapers
and
on television
international
television
stations);
Levin Levin
v. Ruby Trading
Corp.,
stations);
v. Ruby
Trading Corp., 248
248 F.Supp
F.Supp 537,
537,
541044
541044
(S.D.N.Y.
(S.D.N.Y.
Broadfoot
v. Diaz,
Broadfoot
v. Diaz,
1965)
1965)
(service
by ordinary
(service
by mail);
ordinary
245
245 B.R.
B.R.
713,
713,
719-20
719-20
mail);
(Bankr.N.D.Ga.
(Bankr.N.D.Ga.
2000)
by e-mail).
2000)(service
(service
by e-mail).
Service
on on
defendants
here by here
standard
registeredand registered
Service
defendants
byand
standard
mail
bothboth
the New
Moscow
with
mailto to
theJersey
New and
Jersey
andaddresses
Moscow along
addresses
along with
publication
is proper
methods
are reasonably
publication
is because
proper these
because
these
methods are reasonably
calculated
to notify
Defendants
action and of
calculated
to the
notify
theof this
Defendants
this
action
afford
them
the opportunity
present theirpresent
objections.their
The objections.
afford
them
the opportunity
house
New Jersey
remains
the property
of
housein Sparta,
in Sparta,
New
Jersey
remains
the
property
and
The
of
defendant
Alexander
Rozenfeld,
and the current
defendant
Alexander
Rozenfeld,
andresident,
the current resident,
who according
to Rolex’s
a relative of
according
to information
Rolex’s isinformation
is
a
relative
of
defendant,
can can
be expected
to relay any
received
by mail received by
defendant,
be expected
tomail
relay
any
them.
them.
Furthermore,
RolexRolex
has a good
for faith
Furthermore,
hasfaith
a basis
good
basis
for
believing
that that
mail delivered
to Prok Alexander,
St. Acad.
believing
mail delivered
to Prok
Alexander, St. Acad.
Anohina,
Moscow,
will reach
some
Anohina, 38-1-64,
38-1-64,
Moscow, 119602,
119602,Russia,
Russia,
will
reach some
or
of defendants,
because this
was the return
orallall
of defendants,
because
this address
was the return address
previously
usedused
in connection
with one of with
the deliveries
previously
in connection
one ofof the deliveries of
counterfeit
watches.
counterfeit
watches.
Rolex
seeksseeks
to effect to
service
by email.
Rolexalso
also
effect
service
by
email.
In
In
recent
years,
courts courts
have not hesitated
allow
service via allow service via
recent
years,
have not
hesitated
e-mail
where,
as here,
plaintiffahas
been unablehas
to serve
e-mail
where,
as ahere,
plaintiff
been unable to serve
12
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process
using the standard
and
processon the
on defendant
the defendant
using methods
the standard
methods and
plaintiff
demonstrates
that the email
is likely
reach is likely to reach
plaintiff
demonstrates
that
the toemail
the
See RioSee
Properties,
284 F.3d at 1018
thedefendant.
defendant.
Rio Properties,
284(email
F.3d at 1018 (email
service
to defendants
in Costa in
RicaCosta
is proper);
Tishman
v.
service
to defendants
Rica
is proper);
Tishman v.
Associated
Press,
Feb.Feb. 6,
Associated
Press, 2006
2006 WL
WL 288369
288369atat *3
*3 (S.D.N.Y.
(S.D.N.Y.
6,
2006)
for substituted
service by email
granted);
2006) (motion
(motion
for substituted
service
by email granted);
Williams
v. Advertising
Sex LLC,
Williams
v. Advertising
Sex
LLC,
231
231 F.R.D.
F.R.D.
483,
483,
488
488
(N.D.W.Va.
2005)
(holding
“a direction
serve processto
by serve process by
(N.D.W.Va.
2005)
(holding
“atodirection
e-mail
in addition
to international
mail and registered
e-mail
in addition
to registered
international
mail
and
international
standard
mail” to defendants
is
international
standard
mail” toin Australia
defendants
in Australia is
proper);
D.R.I.
v. Dennis,
WL 1237511
(S.D.N.Y. at *2 (S.D.N.Y.
proper);
D.R.I.
v. 2004
Dennis,
2004 at
WL*21237511
June
June
3,
3,
2004)
2004)
(plaintiff
orderedordered
to attempt service
of
(plaintiff
to attempt
service
of
process
registered
mail, publication
and email); Popular
processby by
registered
mail, publication
and email); Popular
Enter.
LLC
v. Webcom
MediaMedia
Group, Group,
Inc., 225 Inc.,
F.R.D. 560,
Enter.
LLC
v. Webcom
225562
F.R.D. 560, 562
(E.D.
uponupon
defendant
in Portugal
(E.D.Tenn.
Tenn. 2004)
2004) (service
(service
defendant
inviaPortugal via
email
email
“is
methodmethod
of serviceof
mostservice
likely to reach
“isthe the
most
likely
to
reach
defendant.”);
Ryan v.
Brunswick
Corp.,
defendant.”);
Ryan
v. Brunswick
Corp., 2002
2002 WL
WL 1628933
1628933atat
*2
May 31,
email to defendants
*2(S.D.N.Y.
(S.D.N.Y.
May2002)
31,(service
2002) by(service
by email to defendants
in
is appropriate).
inTaiwan
Taiwan
is appropriate).
In
Properties,
the plaintiffthe
attempted
to serve attempted to serve
InRioRio
Properties,
plaintiff
the
a Costa
at an address in at an address in
thedefendant,
defendant,
a Rican
Costacorporation,
Rican corporation,
Miami,
that the defendant
useddefendant
as a businessused
Miami,Florida
Florida
that the
as
a
business
address.
The address
actually belonged
to the
defendant’s
address.
The address
actually
belonged
to the defendant’s
13
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international
courier,courier,
which refused
to accept
serviceto
on accept service on
international
which
refused
the
behalf.behalf.
thedefendant’s
defendant’s
284
at at 1016.
plaintiff
284 F.3d
F.3d
1016.The The
plaintiff
also
to serve
defendant’s
in the
alsoattempted
attempted
totheserve
the attorney
defendant’s
attorney in the
United
who refused
service
the
UnitedStates,
States,
who to accept
refused
toon accept
service
on
the
defendant’s
behalf.
The plaintiff’s
investigator private investigator
defendant’s
behalf.
Theprivate
plaintiff’s
was unable
to obtain
a business
for the
defendant
unable
to obtain
a address
business
address
for the defendant
in
Rica,
so theso
plaintiff
an emergency
to
inCosta
Costa
Rica,
the made
plaintiff
made motion
an emergency
motion to
effectuate
alternative
service of process.
effectuate
alternative
service
of
process.
Id.
Id.
The
District
CourtCourt
grantedgranted
the plaintiff’s
and permitted
District
themotion
plaintiff’s
motion and permitted
the
to serve to
the defendant
by mailing
a copy by
of mailing a copy of
theplaintiff
plaintiff
serve the
defendant
the
complaint
to the defendant’s
international
thesummons
summonsandand
complaint
to the defendant’s
international
courier,
mailing
a copy toathecopy
defendant’s
counsel
and
courier,
mailing
to the
defendant’s
counsel
and
emailing
a copy
to the defendant,
using an e-mailusing
addressan e-mail address
emailing
a copy
to the defendant,
that
listed
on the defendant’s
website and print
media. and print media.
thatwas
was
listed
on the defendant’s
website
Id.
1017-18.
Id.at at
1017-18.
The Ninth
Circuit
affirmedaffirmed
the District Court’s
order
Ninth
Circuit
the District
Court’s order
and
that if any
and stated
stated
that
if
any
“method
is
“methodof communication
of communication
is
reasonably
calculated
to provide
with notice,
reasonably
calculated
to provide [defendant]
[defendant]
with notice,
surely
it is it
e-mail
of communication
which
surely
is e-mail —
— the
themethod
method
of communication
which
[defendant]
utilizes
and prefers.”
Rio prefers.”
Properties,
[defendant]
utilizes
and
Rio
Properties,
284
284
F.3d atat
1018;
see also
231 F.R.D. at 231
487 (e-mail
F.3d
1018;
seeWilliams,
also Williams,
F.R.D. at 487 (e-mail
service proper
because defendants
service
proper
because are
defendants
are
participants in e-commerce.’”);
Popular Enterprises,
participants
in e-commerce.’”);
Popular
14
“‘sophisticated
“‘sophisticated
Enterprises,
225
225
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F.R.D.
service
is appropriate
since such
F.R.D.at at 562
562 (e-mail
(e-mail
service
is appropriate
since such
communication
has been
communication
has
been
“zealously
embraced
within thewithin
“zealously
embraced
the
business
community.”);
Ryan, 2002
WL 2002
1628933
*2 (serviceat *2 (service
business
community.”);
Ryan,
WLat1628933
by
and facsimile
proper because
by e-mail
e-mail
and isfacsimile
isdefendant
proper
conducts
conducts
its
its
business
business
through
through
because
defendant
means
these
these
of
of
communication).
communication).
The rationale
used in used
Rio applies
this case.
rationale
in toRio
applies
to
this
case.
Defendants
transact
their counterfeiting
business over thebusiness over the
Defendants
transact
their counterfeiting
Internet
and their
formmain
of communication
their
Internet
and main
their
form of with
communication
with their
customers
is through
customers
is e-mail.
through
e-mail.
Indeed,
RolexRolex
has
Indeed,
has
communicated
defendants
on severalon
occasions
via e-occasions via ecommunicatedwithwith
defendants
several
mail,
andand
therethere
is ampleisevidence
the emailsthat
sent by
mail,
ample that
evidence
the emails sent by
Rolex
its representatives
were receivedwere
by defendants.
Rolexor or
its representatives
received by defendants.
Rolex
different
addresses for e-mail
Rolexhas several
has
severale-maildifferent
addresses
defendants,
enhancing
the high probability
that every
defendants,
enhancing
the high
probability
method
the Defendants
be utilized.
methodof contacting
of contacting
the will
Defendants
will
that
be
for
every
utilized.
Accordingly,
service
via e-mail
is reasonably
calculated
to
Accordingly,
service
via
e-mail is
reasonably
calculated to
apprise
defendants
of the of
present
and toaction
effect thisand to effect this
apprise
defendants
theaction
present
Court’s
jurisdiction
over them.
Court’s
jurisdiction
over them.
15
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II.
A WRIT
OF ATTACHMENT
ON THE
ROZENFELDS’
PROPERTY
IS IS
II.
A WRIT
OF ATTACHMENT
ON THE
ROZENFELDS’
PROPERTY
PROPER
PROPER
A motion
for afor
writ of
be granted
motion
a attachment
writ of should
attachment
should be granted
ififthethe
court court
finds thatfinds that (1)
is a probability
that
(1)there
there
is a probability
that
final
judgment
will bewill
rendered
favor of thein
plaintiff;
final
judgment
be inrendered
favor of the plaintiff;
(2)
are statutory
grounds for grounds
issuance offor
the writ;
(2)there
there
are statutory
issuance of the writ;
and
defendant
has real has
or personal
at a
and (3)
(3)thethe
defendant
real property
or personal
property at a
specific
location
within New
Jersey which
subject towhich is subject to
specific
location
within
New isJersey
attachment.
N.J. Ct.
R. Ct. R. 4:60-5(a);
4:60-5(a); Sentry
Insur. v.Insur.
Sky
attachment.
N.J.
Sentry
v. Sky
Management
Management Inc.,
Inc., 34 F.Supp.2d
F.Supp.2d 900,
900, 903
903 (D.N.J.
(D.N.J. 1999)
1999) (a
(a
writ
of attachment
is obtained
two purposes:
writ
of attachment
isfor obtained
for two purposes: (1)
(1)to to
acquire
jurisdiction
over an out-of-state
inacquire
jurisdiction
over andefendant’s
out-of-state
defendant’s instate
property
and (2)and
to gain
for a security
claim pending
state
property
(2)security
to gain
for a claim pending
at
timetime
of attachment).
atthe
the
of attachment).
On
record,
it can hardly
disputed
that be disputed that
On the
thepresent
present
record,
it be
can
hardly
the
were involved
in the sale, in
offerthe
for sale,
thedefendants
defendants
were involved
sale, offer for sale,
distribution,
promotionpromotion
and advertisement
watches
distribution,
and of advertisement
of
watches
bearing
counterfeits
and infringements
of Rolex’s federally
bearing
counterfeits
and infringements
of Rolex’s federally
registered
RolexRolex
trademarks.
registered
trademarks.
controlled
controlled
the
the
Defendants
operated
and
Defendants
operated
www.replicamaker.com
www.replicamaker.com
websites
websites
and
and
and
www.replicaexpert.us
which advertised,
distributed and
sold
www.replicaexpert.us
which advertised,
distributed
and sold
watches
counterfeits
of one or more
the Rolex
watchesbearing
bearing
counterfeits
of ofone
or more of the Rolex
Trademarks.
A Rolex
purchased a counterfeit
Trademarks.
A investigator
Rolex investigator
purchased a counterfeit
Rolex
Rolex
watches
watches
through
through
www.replicamaker.com
www.replicamaker.com
16
and
and
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www.replicaexpert.us
and hasand
documented
all correspondence
has documented
all correspondence
www.replicaexpert.us
between
parties.
Based onBased
these facts,
there is facts,
a high there is a high
betweenthe
the
parties.
on these
probability
that athat
final judgment
be renderedwill
in favor
probability
a finalwilljudgment
be rendered in favor
of
See Fravega
v. Securityv.
Sav.
& Loan Ass’n,
192
ofRolex.
Rolex.
See Fravega
Security
Sav. & Loan Ass’n, 192
N.J.Super
213, 469
469 A.2d
is
N.J.Super 213,
A.2d 531
531 (Ch.Div.
(Ch.Div. 1983)
1983) (a
(aresult
result
is
probable
if it if it “can
and fairly
be
probable
“canreasonably
reasonably
andconvincingly
fairly convincingly
be
accepted
without
acceptedas true,
as factual,
true,or possible
factual,
orbeing
possible
without
being
undeniably
so.”)
undeniably
so.”)
Secondly,
pursuant
to N.J.S.A.
and and
Federal
Secondly,
pursuant
to N.J.S.A. 2A:26-2(b)
2A:26-2(b)
Federal
Rule
CivilCivil
Procedure
64, there 64,
is a statutory
for
Ruleofof
Procedure
there ground
is a statutory
ground for
issuing
a writ
attachment.
Rule 64 provides
that64
at the
issuing
a of
writ
of attachment.
Rule
provides that at the
commencement of and
action
of during
and anduring
an
action
“all
remedies
“all
remedies
providing
for seizure
of personof
or property
purpose for the purpose
providing
for seizure
personforortheproperty
of
satisfaction
of the judgment
to be
ofsecuring
securing
satisfaction
of ultimately
the judgment
ultimately to be
entered
. . ..are
. . . in the manner
by manner provided by
entered
. available
. are available
. . provided
. in the
the
of the
which the
court
is held
.
thelaw
law
ofstate
theinstate
indistrict
which
the
district
court is held .
R. Civ. P.
. . .”
.”Fed. Fed.
R. Civ. P. 64.
64.
Writs
are
Writsof attachment
of attachment
are
included
among
the remedies
listed in Rule
included
among
the remedies
listed in Rule 64.
64.
section
section
2A:26-2(b),
an attachment
may issue against
the
2A:26-2(b),
an attachment
may issue
Under
Under
against
the
where
the
real
property ofproperty
any defendant
realor personal
or personal
ofwhere
anythe defendant
defendant
absconds
or is aor
nonresident
of the state andof
a the state and a
defendant
absconds
is a nonresident
summons
be be
served
on himon
within
state. N.J.S.A.
summons cannot
cannot
served
himthe
within
the state.
2A:26-2(b).
2A:26-2(b).
17
N.J.S.A.
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Defendants
Defendants
Alexander
Alexander
and
and
Victoria
Victoria
Rozenfeld,
Rozenfeld,
previously
residents
of New Jersey,
returnedhave
to Russia
previously
residents
of Newhave
Jersey,
returned to Russia
and
longer
reside in reside
New Jersey.
and nono
longer
in
New
Due to to
their their
Jersey.
relocation,
personal
service on
defendants
the state within the state
relocation,
personal
service
on within
defendants
cannot
effected.
See Behring
Int’l,Behring
Inc. v. Imperial
cannotbe be
effected.
See
Int’l, Inc. v. Imperial
Iranian
Air Force,
Iranian
Air Force,
475
475 F.Supp.
F.Supp.
(stating
that the
statutethe
requires
(stating
that
statute
396,
396,
requires
404
404
(D.N.J.
(D.N.J.
1979)
1979)
“no
than an
“nomore
more
than
an
inability
to serve
the state;within
it does the state; it does
inability
toa defendant
serve a within
defendant
not
that personal
jurisdiction over
the defendant over the defendant
notrequire
require
that personal
jurisdiction
not
obtainable.”)
The Rozenfelds’
located
notbe be
obtainable.”)
Theproperty,
Rozenfelds’
property,
within
the state,
registered
within
the is still
state,
is to Alexander
still registered
to
located
Alexander
Rozenfeld
andand
maymay
be the
means
for means
Rolex tofor
satisfy
a
Rozenfeld
beonly
the
only
Rolex
to satisfy a
judgment
the Defendants.
Accordingly, a writ
of
judgmentagainst
against
the Defendants.
Accordingly,
a writ of
attachment
against
the Rozenfeld
residence isresidence
proper, and, is proper, and,
attachment
against
the Rozenfeld
ififRolex
is to have
any have
chanceany
of recovery
against
Rolex
is to
chance
of these
recovery against these
defendants,
Rolex’s
best hope
at achieving
measure ofsome measure of
defendants,
Rolex’s
best
hope atsome
achieving
justice.
justice.
Finally,
the 56
Westbury
Drive address
is real
roperty is real roperty
Finally,
the
56 Westbury
Drive
address
that
to two to
of the
principle
in this defendants in this
thatbelongs
belongs
two
of defendants
the principle
case,
because
it is located
in Sparta,
Newin
Jersey,
it
case,and,
and,
because
it is
located
Sparta,
New Jersey, it
is
to the to
jurisdiction
of the Court. Therefore,
issubject
subject
the jurisdiction
of the Court.
Therefore,
all
thethe
requirements
under N.J.
Ct. R. 4:60-5(a),
all
requirements
under
N.J. Ct.N.J.S.A.
R. 4:60-5(a), N.J.S.A.
18
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2A:26-2(b)
andand
the Federal
Rules of Civil
Procedure
for theProcedure for the
2A:26-2(b)
the Federal
Rules
of Civil
issuance
of aofwrit
attachment
have been satisfied.
issuance
a ofwrit
of attachment
have been satisfied.
CONCLUSION
For
foregoing
reasons, Rolex’s
motion forRolex’s
Forthe the
foregoing
reasons,
motion
for
substituted
service
and for a and
writ offor
attachment
against
substituted
service
a writ
of attachment against
the
Westbury
Drive,Drive,
Sparta, New
JerseyNew
property
owned
by
the5656
Westbury
Sparta,
Jersey
property
owned by
defendants
Victoria
and Alexander
shouldRozenfeld
be
defendants
Victoria
and Rozenfeld
Alexander
should
granted
in its
granted
inentirety.
its entirety.
Dated:
Dated:
August
2006
August17,
17,
2006
BRAGAR
EAGEL,
B
RAGAR WWEXLER
EXLER & &EAGEL
, PC
PC
By:__/s____________________
By:__/s____________________
Ronald
Coleman
(RC-3875)
RonaldD.D.
Coleman
(RC-3875)
One Gateway
SuiteSuite
2600 2600
GatewayCenter,
Center,
Newark,
070102
Newark,NJNJ
070102
(973)
(973)471-4010
471-4010
Attorneys
for Plaintiff
Rolex
Attorneys
for Plaintiff
Rolex
Watch
Inc. Inc.
Watch U.S.A.,
U.S.A.,
OF
OF COUNSEL:
COUNSEL:
Brian
Brokate
BrianW.W.
Brokate
John
John Malcuso
Malcuso
GIBNEY,
LLP
GIBNEY, ANTHONY
ANTHONY && FFLAHERTY,
LAHERTY, LLP
665
Avenue
665 Fifth
Fifth
Avenue
New
NYNY
10022
New York,
York,
10022
(212)
688-5151
(212) 688-5151
19
be