Brockmeyer v. May, 02-56283.

Citation383 F.3d 798
Decision Date24 March 2004
Docket NumberNo. 02-56283.,02-56283.
PartiesRonald B. BROCKMEYER; Eromedia, Ltd., Plaintiffs-Appellees, v. David C. MAY, Defendant, v. Marquis Publications, Ltd., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Albert S. Israel, Fields Israel & Binning, Long Beach, CA, for the defendant-appellant.

Dennis H. Cavanaugh, Piliero Goldstein Kogan & Mitchell, New York, NY, for the plaintiffs-appellees (former counsel).

Appeal from the United States District Court for the Central District of California, Audrey B. Collins, District Judge, Presiding. D.C. No. CV-99-04018-ABC.

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

WILLIAM A. FLETCHER, Circuit Judge:

Plaintiffs in this case attempted to serve process on an English defendant by using ordinary first class mail to send a summons and complaint from the United States to England. We join the Second Circuit in concluding that the Convention on the Service Abroad of Judicial and Extrajudicial Documents ("Hague Convention," or the "Convention") does not prohibit — or, in the words of the Convention, does not "interfere with" — service of process by international mail. But this conclusion tells us only that the Hague Convention does not prohibit such service. For service by international mail to be effective in federal court, it must also be affirmatively authorized by some provision in federal law.

Federal Rule of Civil Procedure 4 governs service of process in federal district court. In this case, after determining that the Hague Convention does not prohibit service by international mail, the necessary next step is to analyze Rule 4(f) to determine whether it affirmatively authorizes such service. The plaintiffs' attempted service fails because they failed to follow the requirements of that rule. We therefore reverse and remand to the district court with instructions to vacate the judgment.

I. Background: Plaintiffs' Attempts to Serve Process

Ronald B. Brockmeyer is the owner of the trademark >, under which he publishes and distributes adult entertainment media and novelties. On August 3, 1998, Brockmeyer and his company, Eromedia, filed suit against Marquis Publications, Ltd. ("Marquis") and several other defendants in federal district court in the Southern District of New York, alleging trademark infringement and various state-law causes of action. Marquis is a company registered under British law. Plaintiffs' counsel made two attempts to serve on Marquis.

Plaintiffs' counsel made his first attempt on October 7, 1998. He sent the summons and complaint, together with a request for waiver of service, by ordinary first class mail to a post office box in England. Marquis did not respond.

On April 5, 1999, the district court in New York transferred the suit to the Central District of California. On October 6, 1999, the district court in California entered an order to show cause ("OSC") why the suit should not be dismissed for lack of prosecution. Plaintiffs were required to respond to the OSC by October 25, 1999.

Plaintiffs' counsel made his second attempt at service four days before the OSC deadline, on October 21, 1999. This time, instead of sending the summons and complaint together with a request for waiver of service, he sent only the summons and complaint. He sent them by first class mail to the same post office box in England to which he had previously sent the request for waiver. Marquis still did not respond.

Default was entered by the court clerk against several defendants (not including Marquis) on November 24, 1999. Default was entered against Marquis a year later, on November 8, 2000. On February 22, 2002, the district court entered a default judgment of $410,806.12, plus attorneys' fees and costs, against Marquis and two German defendants.

The German defendants moved to set aside the default judgment against them. On June 6, 2002, the district court granted the motion on the ground that they had not been properly served under the Hague Convention and German law. The court ordered plaintiffs to serve the German defendants properly within 90 days or face dismissal. The district court subsequently gave plaintiffs a two-month extension until November 4, 2002. Seven days before the expiration of the extended deadline, plaintiffs' counsel finally submitted documents to the German Central Authority for service. The Central Authority rejected the documents the same day for failure to comply with German law. Almost two months later, plaintiffs' counsel resubmitted documents to the German Central Authority. Nothing in the record indicates whether these resubmitted documents complied with German law. On January 2, 2003, the district court dismissed the suit against the German defendants for failure to serve process within the time allowed under the extended deadline. Plaintiffs have not appealed that dismissal.

Marquis moved independently to set aside the default judgment against it. Among other things, Marquis contended that international mail service must be made by certified or registered mail. On June 26, 2002, the district court denied Marquis's motion, holding that plaintiffs' second attempt at service had been successful. It ruled that mail service is not forbidden by the Hague Convention, and that service on an English defendant by ordinary international first class mail is proper.

Marquis appeals the district court's denial of its motion to set aside plaintiffs' default judgment. We have jurisdiction pursuant to 29 U.S.C. § 1291. Once service is challenged, plaintiffs bear the burden of establishing that service was valid under Rule 4. 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1083 (3d ed. 2002 & Supp.2003); see also Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 538 (9th Cir.1986).

II. Discussion
A. The Hague Convention

The resolution of this appeal depends on whether Marquis was properly served. Because service of process was attempted abroad, the validity of that service is controlled by the Hague Convention, to the extent that the Convention applies. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988) ("[C]ompliance with the Convention is mandatory in all cases to which it applies.").

The Hague Convention, ratified by the United States in 1965, regularized and liberalized service of process in international civil suits. The primary means by which service is accomplished under the Convention is through a receiving country's "Central Authority." The Convention affirmatively requires each member country to designate a Central Authority to receive documents from another member country. See Hague Convention, art. 2. The receiving country can impose certain requirements with respect to those documents (for example, that they be translated into the language of that country). See id., art. 5. If the documents comply with applicable requirements, the Convention affirmatively requires the Central Authority to effect service in its country. See id., arts. 4 & 5.

The Convention also provides that it does not "interfere with" other methods of serving documents. Article 10(a) of the Convention recites:

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.) American courts have disagreed about whether the phrase "the freedom to send judicial documents" in Article 10(a) includes within its meaning the freedom to serve judicial documents.

One line of cases follows Bankston v. Toyota Motor Corp., 889 F.2d 172, 173-74 (8th Cir.1989). In Bankston, the Eighth Circuit held that the meaning of the word "send" in Article 10(a) does not include "serve"; that is, it held that "send" permitted the sending of judicial documents by mail, but only after service of process was accomplished by some other means. In Nuovo Pignone v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir.2002), the Fifth Circuit similarly held 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.

A second line of cases follows Ackermann v. Levine, 788 F.2d 830, 838 (2d Cir.1986), in which the Second Circuit approved a German plaintiff's service of process by mail, when the plaintiff filed suit in Germany and served by registered mail a defendant in the United States. Ackermann relied primarily on the purpose and history of the convention to interpret the word "send" in Article 10(a) to include the meaning "serve." See id.

Whether service by mail is permitted under the Hague Convention is an open question in our circuit. We briefly discussed Article 10(a) in Lidas, Inc. v. United States, 238 F.3d 1076, 1084 (9th Cir.2001), but we did not confront the question whether Article 10(a) allows service by mail. District courts within our circuit are split. Compare R. Griggs Group Ltd. v. Filanto Spa, 920 F.Supp. 1100, 1104-05 (D.Nev.1996) ("send" includes "serve"); Meyers v. ASICS Corp., 711 F.Supp. 1001, 1007-08 (C.D.Cal.1989) (same); and Newport Components v. NEC Home Electronics, 671 F.Supp. 1525, 1541-42 (C.D.Cal.1987) (same) with Anbe v. Kikuchi, 141 F.R.D. 498, 500 (D.C.Hawai'i 1992) ("send" does not include "serve") and Mateo v. M/S Kiso, 805 F.Supp. 792, 796 (N.D.Cal.1992) (same).

Today we join the Second Circuit in holding that the meaning of "send" in Article 10(a) includes "serve." See Ackermann, 788 F.2d at 838. In so doing, we also join the essentially unanimous view of other member countries of the Hague Convention. See, e.g., Case C-412/97, E.D. Srl. v. Italo Fenocchio, 1999 E.C.R. I-3845, [2000] C.M.L.R. 855 (Court of Justice of the European Communities) ("Article 10(a) of [the Hague...

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