Brockmeyer v. May, 02-56283.

• Decision Date: 24 March 2004
• Docket Number: No. 02-56283.,02-56283.
• Citation: 361 F.3d 1222
• Parties: Ronald B. BROCKMEYER; Eromedia, Ltd, Plaintiffs-Appellees, v. David C. MAY, Defendant, and Marquis Publications, Ltd, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

361 F.3d 1222

Ronald B. BROCKMEYER; Eromedia, Ltd, Plaintiffs-Appellees, v. David C. MAY, Defendant, and Marquis Publications, Ltd, Defendant-Appellant.

No. 02-56283.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 9, 2003.

Filed March 24, 2004.

COPYRIGHT MATERIAL OMITTED

Albert S. Israel, Esq., Long Beach, CA, for the defendant-appellant.

Dennis H. Cavanaugh, Esq., New York, NY, for the plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California, Audrey B. Collins, District Judge, Presiding. D.C. No. CV-99-04918-ABC.

Before: SILVERMAN, W.A. FLETCHER, and RAWLINSON, Circuit Judges.

Opinion by Judge SILVERMAN; Dissent by Judge WILLIAM A. FLETCHER

OPINION

SILVERMAN, Circuit Judge.

We must decide whether service of process by an American plaintiff on an English defendant through regular mail to a post office box is valid under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents¹ ("Hague Convention"). We hold that such service is valid because Article 10(a) of the Hague Convention allows for service by mail and England's domestic laws do not prohibit service by mail to a post office box.

I. BACKGROUND

Ronald B. Brockmeyer is the owner of the trademark >, under which he publishes and distributes various forms of media in adult entertainment and novelties. On August 3, 1998, Brockmeyer, and his company, Eromedia, filed a trademark infringement action against several defendants, including Marquis Publications.

Brockmeyer mailed a copy of the summons and complaint to Marquis, a corporation organized and existing under the laws of England, at a post office box address listed in the 1997 edition of Marquis Magazine. Brockmeyer eventually obtained a default judgment against Marquis for $424,000.

Marquis moved to set aside the default judgment on the ground that service was improper under the Hague Convention because Brockmeyer sent the summons and complaint by regular mail to Marquis' post office box instead of its registered address. The district court denied Marquis' motion to set aside the default judgment, holding that the Hague Convention permits service of process by mail.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 29 U.S.C. § 1291. We review for abuse of discretion a decision regarding the sufficiency of service of process. Rio Prop., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1014 (9th Cir.2002). We also review for abuse of discretion a denial of a motion to set aside a default judgment. American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1109 (9th Cir.2000).

III. ANALYSIS

A. Service of Process By Mail Under the Hague Convention to an English Defendant

The well-established meaning of the term "service of process" is a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). Constitutional due process requires that such notice be reasonably calculated to apprise the defendant of the action and afford an opportunity to defend. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

Service of process in federal courts is governed by Federal Rule of Civil Procedure 4. Under Rule 4(f)(1), service of process upon individuals of foreign countries may be effected "by any internationally agreed means reasonably calculated to give notice, such as those authorized by the Hague Convention." Here, both the United States and the United Kingdom are signatories to the Hague Convention, and thus service of process by an American plaintiff on an English defendant in England is governed by the Hague Convention. See Volkswagenwerk, 486 U.S. at 705, 108 S.Ct. 2104. Article 19 of the Hague Convention provides that service of process from abroad may be made by any method permitted by the internal law of the receiving state. See also Fed.R.Civ.P. 4(f)(2)(A) (allowing service to be effected by a manner prescribed by the law of the foreign country).

The Hague Convention of 1965 was intended to "create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time." See Hague Convention Preamble, U.S.C.S. on International Agreements at 265. The Convention provides for alternate methods of service: (1) service through the Central Authority of member states; (2) service through consular channels; (3) Article 10 service that permits service by mail if the receiving state does not object; and (4) service pursuant to the internal laws of the state.

Much of the current controversy concerning the Hague Convention is over the meaning of Article 10(a), which states that "provided the state of destination does not object, the present Convention shall not interfere with — (a) the freedom to send judicial documents, by postal channels, directly to persons abroad" (emphasis added). Two lines of cases interpreting the language of Article 10(a) have developed. In the first line of cases, following Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986), the Second Circuit interpreted the word "send" to mean "service." Ackermann involved a German plaintiff who filed suit in Germany and served by registered mail an American defendant in the United States. The court held that because the United States did not object to mail service under Article 10(a), service by mail was proper under the Hague Convention. See id. at 839.

In contrast, in Bankston v. Toyota Motor Corp., 889 F.2d 172, 173-74 (8th Cir. 1989), the Eighth Circuit concluded that the word "send" in Article 10(a) did not mean service of process in a case involving an American plaintiff who served by registered mail a Japanese defendant in Japan. Rather, Article 10(a) provided a method for transmitting judicial documents abroad after service of process had been accomplished. Id. at 174. More recently, the Fifth Circuit held in Nuovo Pignone v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir.2002), that a strict reading of the Hague Convention did not permit an Italian plaintiff who filed suit in the United States to serve an Italian defendant in Italy by Federal Express.

Although we have yet to directly address this question, we have stated in dicta that Article 10(a) of the Hague Convention demonstrates that the Convention is not meant to prohibit sending judicial documents by mail. Lidas, Inc. v. United States, 238 F.3d 1076, 1084 (9th Cir.2001) (Hague Convention did not appear to require "actual receipt" of notice of an Internal Revenue Service summons).

Within this circuit, district courts are split. In R. Griggs Group Ltd. v. Filanto Spa, 920 F.Supp. 1100, 1104-05 (D.Nev. 1996), the court examined the Hague Convention, decisions from other circuits that have addressed the issue, and several supplementary sources, and concluded that service of process by mail is consistent with the overriding purpose of the Convention to develop a system for effecting service of process in other countries. Accord Meyers v. ASICS Corp., 711 F.Supp. 1001, 1007-08 (C.D.Cal.1989) (holding that Ackermann represented the majority view, and adopting the same view); Newport Components v. NEC Home Electronics, 671 F.Supp. 1525, 1541-42 (C.D.Cal.1987).

Some district courts, on the other hand, have followed Bankston, employing strict statutory construction to conclude that the word "send" in Article 10(a) is not the equivalent of the word "service." See Anbe v. Kikuchi, 141 F.R.D. 498, 500 (D.C.Hawai'i 1992) (examining service of process by an American plaintiff on a Japanese defendant in Japan); Mateo v. M/S Kiso, 805 F.Supp. 792, 796 (N.D.Cal.1992).

We agree, as does our colleague in dissent, with the Second Circuit's decision in Ackermann. The very purpose of the Convention is to provide the means for service abroad. See Hague Convention Preamble. Article 1 states: "the present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extra-judicial document for service abroad." (emphasis added). The structure of the Convention and the placement of subsection (a) within Article 10, which lists alternate methods of service to which contracting states must specifically object, suggests that the word "send" was used as a synonym for the word "serve." R. Griggs, 920 F.Supp. at 1104.

Further support for this view is found in the subsequent Special Commission meetings held in 1977 and 1989, which convened to evaluate the Hague Convention and its application. See Permanent Bureau Report on the First Special Commission, 17 I.L.M. 319 (1978), and Permanent Bureau Report on the Second Special Commission, 28 I.L.M. 1556 (1989). At both meetings, the conclusion concerning Article 10(a) was that most States did not object to service by mail in their territories. See id.

In 1983, as a result of the first Special Commission meeting, the Permanent Bureau published the Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, (1983), (the "Handbook"). The Handbook was produced in cooperation with the representatives of the signatory states. With respect to Article 10(a), it stated that unless a member country specifically objected to service by mail, it should be allowed.² The Handbook also concluded that to interpret the Article otherwise would be to contradict the implicit understanding of the delegates at the 1977 Special Commission, and the other legal literature on the Hague Convention as well as its predecessor treaties. Handbook, p. 44, 1992.

In the instant case, neither the United States nor the United Kingdom objected to subsection (a) of Article 10. Given that the United Kingdom...