IPO Board Suggests Amendment to Rule 4 of FRCP

By: Monica Katthage


On December 6, 2016, the Board of the Intellectual Property Owners Association (“IPO”) adopted a resolution supporting, in principle, that Rule 4 of the Federal Rules of Civil Procedure (FRCP) be amended to allow for service of process by e-mail, without a court order, in cases involving commercial activity conducted using a domain name that is registered to a fictitious party.

Without such a change to Rule 4, a party would have to seek leave of court to deviate from the standard means of service of process, which include hand delivery to a corporate officer, leaving it at the place of business with a person in charge or in a conspicuous place in the office, mailing it to the last known address, leaving it with the court clerk if no address is known, or delivering it to the registered agent of the company.

In instances involving commercial activity conducted using a domain name that is registered to a fictitious party, the standard means of service of process are unattainable.  Plaintiffs cannot easily identify the correct party to serve, or the correct address at which to serve, when the potential defendants hide behind fictitious entities.  However, oftentimes the websites will have an email address listed at which to contact this fictitious entity.  This proposed amendment would allow parties to effectuate service using that email address when other means are not available, without the added time, expense, and burden of seeking leave of court.

Osha Liang will continue monitoring this story and report should any movement be made towards adopting this amendment to Rule 4 of the Federal Rules of Civil Procedure.