Match Group, LLC v. Bumble Trading Inc.

Western District of Texas, txwd-6:2018-cv-00080

REPLY to Response to Motion, filed by Match Group, LLC, re [106] Opposed MOTION to Substitute Service filed by Plaintiff Match Group, LLC

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION MATCH GROUP, LLC § § § Plaintiff, § § v. § § BUMBLE TRADING INC., BUMBLE § HOLDING, LTD., BADOO TRADING § No. 6:18-cv-00080-ADA LIMITED, MAGIC LAB CO., WORLDWIDE VISION LIMITED, § BADOO LIMITED, BADOO § SOFTWARE LIMITED, and BADOO § JURY TRIAL DEMANDED TECHNOLOGIES LIMITED, § § Defendants. § § BUMBLE TRADING INC. and BUMBLE § HOLDING, LTD., § § Cross-Plaintiffs, v. § § § MATCH GROUP, LLC and § IAC/INTERACTIVECORP., § § § Cross-Defendants. § MATCH GROUP, LLC'S REPLY IN SUPPORT OF ITS MOTION FOR SUBSTITUTE SERVICE TABLE OF CONTENTS I. ARGUMENT IN REPLY ........................................................................................................ 1 A. The Court Has Authority to Grant Match's Requested Relief ............................................. 1 B. Alternative Service Is Necessary Because of Time, Expense, and Defendants' Discovery Games. ................................................................................................................ 2 II. CONCLUSION ....................................................................................................................... 5 i TABLE OF AUTHORITIES Cases Affinity Labs of Tex., LLC v. Nissan N. Am. Inc. No. WA:13-CV-369, 2014 WL 11342502 (W.D. Tex. July 2, 2014)......................................... 1 Brown v. China Integrated Energy, Inc. 285 F.R.D. 560 (C.D. Cal. 2012) ................................................................................................ 2 In re Chinese-Manufactured Drywall Products Liability Litigation 2015 WL 13387769 (E.D. La. Nov. 9, 2015).............................................................................. 2 Rio Props., Inc. v. Rio Int'l Interlink 284 F.3d 1007 (9th Cir. 2002) ..................................................................................................... 2 ii I. ARGUMENT IN REPLY The Opposition to Match's Motion for Substitute Service is just Defendants' latest procedural game. The non-Bumble Defendants are aware of this litigation; they have been since Match filed it. They are represented by the same U.S. lawyers on the same issues. This is clear from the Opposition itself. Nominally, it was filed on behalf of Bumble. Yet it is advocating for the co-represented non-Bumble Defendants. Thus the Motion proves too much: Were the entities actually separate, the Bumble Defendants would have no position on Match's motion. In any event, Bumble admits that service overseas may take considerable time, while identifying no due process issue or other legal impediment to service through counsel. Instead, Bumble appears to argue simply that the non-Bumble Defendants are entitled to the delay that overseas service will create. But in the midst of fact discovery, there is no reason to cause delay or increase costs where Defendants are already aware of the action, participating in it, and represented by the same counsel. A. The Court Has Authority to Grant Match's Requested Relief Despite the Opposition's incorrect claim that alternative service is available "only where a plaintiff has made a substantial effort, but been unable, to serve a foreign defendant through conventional means," Dkt. 110 at 3 (emphasis in original), the law is clear: the Court may order alternative service if not prohibited by an international agreement and it complies with due process. Dkt. 106 at 4. The Opposition's argument to the contrary is simply wrong. As another court in the Waco Division concluded, "a plaintiff does not have to attempt to effect service under Rule 4(f)(1) or Rule 4(f)(2) prior to requesting the authorization of an alternative method of service pursuant to Rule 4(f)(3)." Affinity Labs of Tex., LLC v. Nissan N. Am. Inc., No. WA:13-CV-369, 2014 WL 11342502, at *1 (W.D. Tex. July 2, 2014); see also Brown v. China 1 Integrated Energy, Inc., 285 F.R.D. 560, 565 (C.D. Cal. 2012) (holding "plaintiffs are not required to make" a showing that other methods are impracticable). The only question is whether the Court should exercise the discretion that it concededly has, and Bumble makes no clear argument why it should not. Instead, the Opposition argues only that Cooley has not been authorized to accept service on their behalf, and Bumble implies that only authorized agents are permitted to accept service. This is simply incorrect. Brown, 285 F.R.D. at 565–66 ("Due process does not require that the individuals served on behalf of foreign defendants have. . . been authorized to accept service. . . ."). And while some courts require a showing of diligence in some circumstances, this is not a legal or due-process requirement.1 Indeed, courts typically do not evaluate attempts to serve when urgency counsels toward substitute service. See, e.g., Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002) ("[I]in cases of 'urgency,' Rule 4(f)(3) may allow the district court to order a 'special method of service,' even if other methods of service remain incomplete or unattempted."). B. Alternative Service Is Necessary Because of Time, Expense, and Defendants' Discovery Games. Given the Court's ability to grant Match's requested relief, the Court should do so. This is not a case in which Match has filed a lawsuit against foreign defendants and merely does not care to serve through traditional means. Rather, the non-Bumble Defendants have known about this case for over a year, participated in it, and have, alongside Bumble, collectively determined not to cooperate in an efficient and pragmatic manner. Such circumstances warrant intervention. 1 The Opposition cites In re Chinese-Manufactured Drywall Products Liability Litigation as "recogniz[ing] a plaintiff's burden" to establish an attempt to serve before moving for relief. But the case merely says that "some district courts" require such a showing to "prevent parties from whimsically seeking alternate means of service," No. 09-cv-2047, 2015 WL 13387769, at *5 (E.D. La. Nov. 9, 2015). There is nothing "whimsical" about Match's request here. 2 First there is the time and expense of service, particularly in view of Defendants' byzantine structure. The estimates are discussed in Paragraph 2 of the Summers Declaration. Second, there is also urgency not of Match's making. Despite knowing of issues related to their own corporate form, Defendants have only recently disclosed their intent to use this byzantine structure as a discovery shell game. For example, Match began requesting source code implicated by its infringement contentions in March 2018. The Bumble Defendants refused to produce code at that time. After discovery opened, they then identified only 17 source code files for production. Match immediately raised concerns about this production. Match then promptly reviewed the code to discover that the production did include basic functionality, like dragging-gesture user interface ("UI") code and the code that connects the UI to the files produced. Bumble's code also omitted server code that receives requests related to the accused functionality. These are just examples. Match promptly raised these concerns, only to be ignored for weeks before Bumble disclosed its position that none of the missing code was in "Bumble's possession," further disclosing that it would take weeks to determine whether it could be produced. To date, Bumble has also refused to disclose in whose possession the code is—likely because the code is simply housed in these other related entities. See, e.g., Summers Decl. ¶ 3. Given this position on the code of the app itself, it is likely that Bumble is planning to withhold other critical information based on these specious corporate-form arguments. Acts like this caused the need to add these parties. Defendants' argument that Match "inexplicably delayed" adding these Defendants is also simply false. Match has near constantly discussed discovery issues stemming from Defendants' byzantine structure for purposes of evaluating the need to add the non-Bumble Defendants only to be rebuffed or ignored for weeks on end: 3  Shortly after discovery opened on June 14, 2019, the parties participated on a June 18 call concerning a discovery order and ESI issues. Match's counsel asked whether the non-Bumble Defendants housed relevant documents/witnesses and whether the Bumble Defendants would be producing documents and witnesses from those entities. Counsel for Bumble indicated it would get back to Match. Summers Decl, ¶4.  On July 1, 2019, Match proposed a deal in which Match Group, LLC would collect information in Match Group, Inc.'s custody and control if the Bumble Defendants did so for the non-Bumble Defendants. Ex. A. The Bumble Defendants did not respond. Match followed up on July 8, 2019. The Bumble Defendants did not respond. Match followed up again on July 11, 2019. On July 13, 2019, the Bumble Defendants indicated that they were "still working through" the matter. Ex. B.  On July 18, 2019, the Bumble Defendants' counsel, via phone call, indicated that the Bumble Defendants rejected the offered deal and would not agree that this information was in their custody and control. Summers Decl. ¶ 5.  On July 23, 2019, Match informed the Bumble Defendants that it intended to add the non-Bumble Defendants to the case in light of the Bumble Defendants' rejection of the deal. Ex. C. On July 25, 2019, Mr. Caplan requested to discuss the issue via phone. Id.  Counsel for Match and the Bumble Defendants discussed the issue multiple times between July 25, 2019, and July 31, 2019, before ultimately concluding no possible deal was acceptable to both parties. See, e.g., Ex. D. Two days later, Match added the non-Bumble Defendants. Dkt. 100. Had Defendants immediately rejected the deal because, for example, the information was obviously not in Bumble's custody and control, Match would have added the Defendants months earlier. Instead, Bumble engaged in a protracted discussion (likely involving all Defendants) concerning whether to take the position that information in its control was not. When that position became clear, Match acted days later. Any "delay" is not a basis to decline substitute service. To be clear, the notion that these entities are intimately related, collaboratively participating, or even alter egos is not mere supposition. Some facts known to Match include:  The ultimate controlling member of Badoo Limited, Badoo Technologies Limited, and Badoo Trading Limited is Andrey Andreev/Ogandzhantyants. Exs. E - H. On information and belief, Mr. Andreev is also the ultimate decisionmaker for the remaining entities. Bumble's CEO speaks to Andrey Andreev two to five times a day. Ex. I. He is a director of Bumble Holding. Ex. S. 4  The Magic Lab press release indicates that "Andrey Andreev, Founder and CEO of the group which builds, owns, and operates. . . Badoo, Bumble, Chappy and Lumen. . ." Ex. J. Despite the Opposition's statement that Magic Lab does not exist, significant information indicates that it does. See Exs. K-L. Magic Lab's website also indicated that Bumble was conceived at "Magic Lab HQ" in London in 2014—despite the fact Magic Lab supposedly didn't exist until June 2019. Ex. M.  Mariko O'Shea is Head of Legal for "Badoo." Ex. N. Her e-mail address indicates that she is in-house counsel for Badoo Trading Limited. She is also Head of Legal for Worldwide Vision Ltd. Ex. P. Other sources indicate she is an in-house solicitor at Badoo Limited. Ex. Q. She has e-mailed Match-affiliated entities from both "badoo.com" and "magiclab.co" accounts.  In the Summer of 2018, Mariko O'Shea participated in a call with Joe Drayton, John Summers, Brad Caldwell, Jared Sine, and others. Ms. O'Shea and Mr. Drayton were there apparently on behalf of Bumble Trading. Summers Decl. ¶ 6. Ms. O'Shea has also communicated with Mr. Sine at other times throughout the case.  Idan Wallichman is a designated representative of Worldwide Vision Ltd. Dkt. 80-4 at 7. He is also a director of the non-Bumble Defendants and Bumble Holding Limited. Exs. Exs E-H, S. He is also CFO of Magic Lab. Ex. K.  Bumble named Badoo Software Limited, Badoo Trading Limited, and Badoo Limited as real-parties-in-interest to the pending IPR petitions. This is likely because these entities actually developed the Bumble Defendants' software. Ex. T.  Cooley has previously recognized that it needs client approval "from London." Ex. U. The only in-house counsel for "Bumble" lives in Austin. 6/17/19 Hr. Tr. at 78:8-21. Yet despite this evidence, the Opposition states that the non-Bumble Defendants "have not participated in the action to date." This statement is misleading (at best). Indeed, when pressed, Cooley admitted that it was using this phrase as a "term of art" referring only to formal participation in "motion practice." Ex. V. Cooley also refused to log its communications with the non-Bumble Defendants. As this evidence makes clear, this Opposition is nothing more than collective gamesmanship from these intimately related Defendants. II. CONCLUSION For the reasons stated above, Match requests this Court order service of the summons and complaint through the Defendants' United States counsel, Cooley LLP. 5 DATED: August 28, 2019 Respectfully submitted, CALDWELL CASSADY & CURRY By: /s/ Bradley W. Caldwell Bradley W. Caldwell Texas State Bar No. 24040630 Email: bcaldwell@caldwellcc.com John F. Summers Texas State Bar No. 24079417 Email: jsummers@caldwellcc.com Warren J. McCarty, III Texas State Bar No. 24107857 Email: wmccarty@caldwellcc.com CALDWELL CASSADY CURRY P.C. 2101 Cedar Springs Road, Suite 1000 Dallas, Texas 75201 Telephone: (214) 888-4848 Facsimile: (214) 888-4849 John P. Palmer State Bar. 15430600 Email: palmer@namanhowell.com Naman, Howell, Smith & Lee, PLLC 400 Austin Avenue, 8th Floor P.O. Box 1470 Waco, TX 76701 Telephone: (254) 755-4100 Facsimile: (254) 754-6331 ATTORNEYS FOR PLAINTIFF MATCH GROUP, LLC CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel registered as Filing Users on this 28th day of August, 2019. /s/ Bradley W. Caldwell Bradley W. Caldwell 6