Macrocharts Research LLC v. Chou, No. 25-cv-06447-JST (Northern District of Cal. (N.D. CAL) Jan. 26, 2026)

Case details
Full caption
MACROCHARTS RESEARCH LLC v. TONY CHOU
Country
United States
Jurisdiction
Federal
Court
Northern District of California (N.D. CAL)
Decided
Jan. 26, 2026
Disposition
Motion Granted
MACROCHARTS RESEARCH LLC, Plaintiff, v. TONY CHOU,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 192661Only the Westlaw citation is currently available.United States District Court, N.D. California.MACROCHARTS RESEARCH LLC, Plaintiff,v.TONY CHOU, Defendant.Case No. 25-cv-06447-JST|Filed 01/26/2026Attorneys and Law FirmsVictor de Gyarfas, Foley & Lardner LLP, Los Angeles, CA,for Plaintiff MacroCharts Research LLC.Tony Chou, Pro Se.ORDER GRANTING MOTIONFOR ALTERNATE SERVICEJON S. TIGAR United States District Judge*1 Before the Court is Plaintiff's Motion for AlternateService. ECF No. 14. The Court will grant the motion.I. BACKGROUNDPlaintiff MacroCharts Research LLC filed a copyrightinfringement claim against Tony Chou on July 31, 2025, buthas been unable to serve him. ECF No. 14 at 3.Prior to filing suit, Plaintiff sent Digital MillenniumCopyright Act (“DMCA”) takedown notices to theblogging platform Substack.com concerning Chou's allegedlyinfringing content. ECF No. 1-1. In response, Chou submitteda DMCA counter-notification pursuant to 17 U.S.C. § 512(g)(3), in which he consented to the jurisdiction of the NorthernDistrict of California and agreed to accept service of processfrom Plaintiff. Id. In that counter-notification, Chou alsoidentified the mailing address for that purpose as 148Sycamore Street, The Blue Mountains, Ontario L9Y 4E4,Canada. Id. at 3.From August 4, 2025, to October 20, 2025, Plaintiff attemptedto serve Chou five times: twice at the Blue Mountainsaddress provided in his DMCA counter-notification, once atan address provided by Substack, once at an address obtainedby Plaintiff's investigator, and once by emailing a request fora waiver of formal service. ECF No. 14 at 3–5; ECF No. 14-1at 2–3. All five attempts were unsuccessful. Id.Plaintiff served the present motion by email atcontact@subutrade.com and by mail to the Blue Mountainsaddress. ECF No. 18. On November 3, 2025, Chou used thatemail address to respond to Plaintiff's counsel, attaching anopposition to the motion, a notice of special appearance, anda certificate of service, which Chou also filed on the docket.ECF Nos. 18, 20. Plaintiff replied on November 6, 2025. ECFNo. 19. On December 23, 2025, Chou filed both a notice oferrata and motion for leave to file a sur-reply in response toPlaintiff's reply. ECF Nos. 24, 25, 26.II. JURISDICTIONThe Court has jurisdiction under 28 U.S.C. § 1331.III. LEGAL STANDARDFederal Rule of Civil Procedure 4(f)(1) provides for serviceof an individual in a foreign country “by any internationallyagreed means of service that is reasonably calculated to givenotice, such as those authorized by the Hague Convention onthe Service Abroad of Judicial and Extrajudicial Documents.”Rule 4(f)(3) also authorizes service “by other means notprohibited by international agreement, as the court orders.”1“[C]ourt-directed service under Rule 4(f)(3) is as favored asservice available under Rule 4(f)(1)” and “is neither a ‘lastresort’ nor ‘extraordinary relief.’ ” Rio Props., Inc. v. Rio Int'lInterlink, 284 F.3d 1007, 1015 (9th Cir. 2002).*2 Courts applying Rule 4(f)(3) have “authorized awide variety of alternative methods of service includingpublication, ordinary mail, mail to the defendant's last knownaddress ... and most recently, email.” Id. at 1016. The NinthCircuit “commit[s] to the sound discretion of the districtcourt the task of determining when the particularities andnecessities of a given case require alternate service of processunder Rule 4(f)(3).” Id.Although a plaintiff is not required to attempt “everypermissible means of service of process before petitioning thecourt for alternative relief” under Rule 4(f)(3), a plaintiff must“demonstrate that the facts and circumstances of the ... casenecessitate[ ] the district court's intervention.” Id. Although aplaintiff need not show that that traditional methods of serviceare impracticable or unlikely to succeed, Brown v. ChinaIntegrated Energy, Inc., 285 F.R.D. 560, 565 (C.D. Cal. 2012),
MACROCHARTS RESEARCH LLC, Plaintiff, v. TONY CHOU,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2doing so is sufficient to justify service under Rule(f)(3). See,e.g., Tevra Brands LLC v. Bayer Healthcare LLC, No. 19-cv-04312-BLF, 2020 WL 3432700, at *5 (N.D. Cal. June 23,2020). Any method of service must comport with due process,meaning that it “must be ‘reasonably calculated, under all thecircumstances, to apprise interested parties of the pendencyof the action and afford them an opportunity to present theirobjections.’ ” Rio Props., 284 F.3d at 1016 (citing Mullane v.Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).Accordingly, to establish that service by email is appropriate,the moving party must show service by email is (1) notprohibited by international agreement, and (2) reasonablycalculated to provide defendants with actual notice. Toyo Tire& Rubber Co. v. CIA Wheel Grp., No. 8:15-cv-0246-DOC(DFMx), 2016 WL 1251008, at *2 (C.D. Cal. Mar. 25, 2016)(collecting cases); William-Sonoma Inc. v. Friendfinder Inc.,No. C 06-06572 JSW, 2007 WL 1140639, at *2 (N.D. Cal.Apr. 17, 2007).IV. DISCUSSIONA. Alternate ServicePlaintiff asks the Court to permit alternate service by email or,in the alternative, by publication. ECF No. 14 at 3. Plaintiffhas met its burden to show “that the facts and circumstances ofthe present case necessitate[ ] the district court's intervention.”Rio Props., 284 F.3d at 1016. Plaintiff undertook a series ofescalating efforts to effect service, including using addressesprovided by Chou himself, addresses obtained through thirdparties, and an address identified by a private investigator.ECF No. 14 at 3–5. In the context of service within the UnitedStates, “two or three attempts at personal service at a properplace should fully satisfy the requirement of reasonablediligence and allow substituted service to be made.” LagreeTechnologies, Inc. v. Spartacus 20th L.P., No. 17-cv-00795-JST, 2017 WL 1374598, at *2 (N.D. Cal. Apr. 17, 2017)(quoting Trackman v. Kenney, at 187 Cal. App. 4th 175, 185(2010)).Plaintiff first attempted service at the Canadian address Chouprovided in his DMCA counter-notification by mailing thecomplaint and waiver of summons and, after no response,by sending the summons and complaint via FedEx. ECF No.14-1 at 2. These efforts, which complied with the HagueConvention, were reasonably calculated to provide noticebecause they relied on an address Chou himself suppliedand employed an international courier capable of deliveringjudicial documents to Canada, a Hague Convention signatorythat has not objected to service by postal channels. HagueConvention art. 10.*3 After those attempts failed, Plaintiff learned fromSubstack that Chou had relocated to Oman and attemptedservice at the address provided, again via FedEx. Id. Theshipment was directed to the city, neighborhood, and buildingidentified by Substack but contained a minor formattingerror, omitting a comma between the city and country name.ECF No. 14 at 3. FedEx later reported that the addresswas “incorrect,” without further explanation, and deliverycould not be completed. Id. at 4; ECF No. 14-1 at 3. Chouasserts this resulted from Plaintiff's improper addressing;however, absent any explanation from FedEx, that assertionis speculative. Even if the Court does not consider this avalid service attempt, it nonetheless demonstrates Plaintiff'sdiligence in attempting to locate and serve Chou.After that attempt failed, Plaintiff retained an investigator,who identified an additional address in Canada associatedwith an individual named Tony Chou. ECF No. 14 at 4; ECFNo. 14-1 at 3. Plaintiff sent the summons and complaint tothat address but received no response. Plaintiff also attemptedservice electronically by emailing the summons, complaint,and a request for waiver of service to the contact email addresslisted on Chou's website. Id. Chou did not respond. Id.Chou's assertions that any failure of service resulted fromPlaintiff's handling or addressing errors are conclusory andunsupported. ECF No. 20 at 3. Plaintiff has exercised duediligence by making five service attempts.These service efforts occurred after Chou's DMCA counter-notification. In that counter-notification, Chou expresslyconsented to the jurisdiction of this Court and agreed toaccept service of process. Chou now asserts that any consentto jurisdiction or acceptance of service provided by hiscounter-notification was temporary. ECF No. 20 at 2–3. Thatargument misreads the statute. Under 17 U.S.C. § 512(g)(3), a counter-notification must include “a statement that thesubscriber consents to the jurisdiction of the Federal DistrictCourt” and “will accept service of process from the personwho provided notification” of the alleged infringement.17 U.S.C. § 512(g)(3)(D). After a counter-notification issubmitted, the service provider may restore the challengedmaterial unless the copyright holder files an infringementaction within the statutory restoration period. Id. § 512(g)(2)(C). Nothing in Section 512(g)(3), however, limits thesubscriber's consent to jurisdiction or acceptance of service
MACROCHARTS RESEARCH LLC, Plaintiff, v. TONY CHOU,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3to that restoration period. Rather, the statute requires consentto jurisdiction and acceptance of service as a condition ofsubmitting a counter-notification.Here, email service is not prohibited by internationalagreement and is reasonably calculated to provide notice.Toyo Tire & Rubber Co., No. 8:15-cv-0246-DOC (DFMx),2016 WL 1251008, at *2. “The Hague Service Conventiondoes not preclude the Court from authorizing service ofprocess via email.” Viral DRM LLC v. Margarita, No. 3:24-cv-00747-JSC, 2024 WL 5318835, at *1–3 (N.D. Cal. May31, 2024). Moreover, the record reflects that Chou hasaccess to the electronic means by which Plaintiff seeksto effect service. The Court therefore authorizes serviceby email pursuant to Rule 4(f)(3). See Xcentric Ventures,LLC v. Karsen, Ltd., No. CV 11-1055-PHX-FJM, 2011 WL3156966, at *1 (D. Ariz. July 26, 2011) (authorizing serviceby email where the defendant consented via DCMA counter-notification to receive service at a Russian address, but theplaintiff's attempt to serve defendant at that address wasunsuccessful).B. SanctionsIn its reply, Plaintiff requests that the Court impose sanctionsbecause Chou cited nonexistent legal authority and failed toverify the accuracy of his citations prior to filing. ECF No. 19.While the Court agrees that Chou's filing was irresponsible,it disagrees that sanctions are warranted.*4 As a threshold matter, a party may not seek sanctionsfor the first time in a reply brief, and any such request mustbe raised in a separately filed motion so that the opposingparty has notice and an opportunity to be heard. Civil L.R.7-8; So v. Land Base, LLC, No. CV 08-3336 DDP (AGRx),2010 WL 11519272, at *1 (C.D. Cal. June 9, 2010) (“Arequest for sanctions cannot be made for the first time in areply brief.”); Falstaff Brewing Corp. v. Miller Brewing Co.,702 F.2d 770, 784 n.11 (9th Cir. 1983) (sanctions requirenotice 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) (“[T]he time to make a requestfor monetary sanctions is not in reply briefs.”). The Court,however, retains inherent authority to address misconduct thataffects the integrity of judicial proceedings and to determinewhether corrective measures are appropriate. See GoodyearTire & Rubber Co. v. Haeger, 581 U.S. 101, 107 (2017).After Plaintiff identified the nonexistent or “hallucinated”citations, Chou filed a notice of errata removing the citedauthorities from his opposition. ECF No. 25 at 2. Nonetheless,the submission of inaccurate legal authority unnecessarilyconsumed the resources of both Plaintiff and the Court.See Mata v. Avianca, Inc., 678 F. Supp. 3d 443, 448–49(S.D.N.Y. 2023); ECF Nos. 19, 25, 26. In cases involvingpro se litigants, however, in the absence of bad faith, courtshave issued warnings and denied opportunities to amend thepleadings in lieu of sanctions. See Kruglyak v. Home DepotU.S.A., Inc., 774 F. Supp. 3d 767, 772 (W.D. Va. 2025) (citingHaines v. Kerner, 404 U.S. 519, 520 (1972)). The Courtfinds no evidence of bad faith and concludes that monetarysanctions are not warranted.Going forward, Chou shall verify the accuracy of legalauthorities cited in his filings.C. Motion for Sur-ReplyChou seeks leave to file a sur-reply to address Plaintiff's replyto his opposition. ECF No. 26-2. “Parties do not have theright to file sur[-]replies and ... [t]he Court generally viewsmotions for leave to file a sur[-]reply with disfavor.” Garciav. Biter, 195 F. Supp. 3d 1131, 1133–34 (E.D. Cal. 2016)(citing Hill v. England, No. CVF05869 REC TAG, 2005 WL3031136, at *1 (E.D. Cal. 2005)). “Although the court mayin its discretion permit the filing of a sur-reply, this discretionshould be exercised in favor of allowing a sur-reply onlywhere a valid reason for such additional briefing exists, suchas where the movant raises new arguments in its reply brief.”Warren v. City of Chico, No. 2:21-CV-00640-DAD-DMC,2024 WL 4803960, at *1 (E.D. Cal. Nov. 15, 2024) (citationand quotation omitted).Plaintiff's reply did not raise any new substantive arguments,and although Plaintiff used the reply to request sanctions,the Court has denied that request. ECF No. 19. Aside fromaddressing the sanctions request, Chou's proposed sur-replyretreads ground covered in the opposition. ECF Nos. 24, 26.Accordingly, Chou's motion for leave to file a sur-reply isDENIED.CONCLUSIONPlaintiff's motion for alternate service is GRANTED. Plaintiffmay serve Defendant by publication and at its email address –contact@subutrade.com – by including this Order with otherpapers served.
MACROCHARTS RESEARCH LLC, Plaintiff, v. TONY CHOU,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4IT IS SO ORDERED.All CitationsSlip Copy, 2026 WL 192661Footnotes1Plaintiff's motion references FRCP Rule 4(e) in its title rather than Rule 4(f). “[T]he label attached to a motiondoes 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, 635 (9th Cir. 1989) (“The nomenclature themovant uses is not controlling. This court must decide whether a motion, however styled, is appropriate forthe relief requested.” (citations omitted)). The “failure of plaintiff's counsel to refer to the proper rule numberdoes not prevent us from granting [ ] relief ... especially where defendants had notice of and argued againstthat relief.” McLearn v. Cowen & Co., 660 F.2d 845, 849 (2d Cir. 1981).End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
ProvenanceKnow exactly where this document came from.Members see the sourcing behind every authority on DocPost — so you can check the record yourself and cite with confidence.Request access