Reflex Media, Inc. v. Apiriliaco Ltd.

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 7, 2018
• Docket: 17-55505
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 7 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

REFLEX MEDIA, INC., a Nevada No. 17-55505 corporation, D.C. No. Plaintiff-Appellee, 8:16-cv-00795-JFW-JEM

v. MEMORANDUM* APIRILIACO LIMITED, dba HoneyDaddy.com; et al.,

Defendants-Appellants.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted November 16, 2018 Pasadena, California

Before: GOULD, PARKER,** and MURGUIA, Circuit Judges.

The district court entered default judgment against Defendants-Appellants

Apiriliaco Ltd., Anatoli Feneridou, and E.C.A. Kartoir Secretarial Ltd. Defendants

appeal that decision on various grounds. We have jurisdiction under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 28 U.S.C. § 1291. Cf. Dreith v. Nu Image, Inc., 648 F.3d 779, 789 n.1 (9th Cir.

2011), Consorzio Del Prosciutto Di Parma v. Domain Name Clearing Co., LLC,

346 F.3d 1193, 1195 (9th Cir. 2003). We reverse and remand, with instructions to

the district court to vacate the default judgment.

Plaintiff-Appellee Reflex Media, Inc. contends that it properly served

process on Defendants in Cyprus—by service of process on Apiriliaco’s and

E.C.A. Kartoir Secretarial’s principal place of business, and on Feneridou’s

domicile. For the reasons that follow, we disagree and hold that Plaintiff did not

make proper service of the summons and complaint on any of the defendants.

Although Cyprus “has not objected to service by mail,” see U.S. State Dep’t,

Judicial Assistance Country Information: Cyprus Judicial Assistance Information,

https://travel.state.gov/content/travel/en/ legal/Judicial-Assistance-Country-

Information/Cyprus.html (last visited Nov. 20, 2018), “otherwise-applicable law”

did not authorize service by mail in this case by the means used by Plaintiff, Water

Splash, Inc. v. Menon, 137 S. Ct. 1504, 1513 (2017) (citing Brockmeyer v. May,

383 F.3d 798, 803–04 (9th Cir. 2004)). First, Plaintiff did not follow the procedure

specified in the Hague Service Convention for serving process on international

parties. See Convention on the Service Abroad of Judicial and Extrajudicial

Documents in Civil and Commercial Matters arts. 3–6, Nov. 15, 1965, 20 U.S.T.

361, 658 U.N.T.S. 163. Service was ineffective under Federal Rule of Civil

2 Procedure 4(f)(1) because Plaintiff did not follow the procedure specified in the

Hague Service Convention. Second, Plaintiff—not the district court clerk—mailed

the summons and complaint to Defendants. For this reason, service was

ineffective under Federal Rule of Civil Procedure 4(f)(2)(C)(ii). Third, Plaintiff

did not “obtain prior court approval” before mailing the summons and complaint to

Defendants. Brockmeyer, 383 F.3d at 805–06. For this reason, service was

ineffective under Federal Rule of Civil Procedure 4(f)(3). See id. Fourth and

finally, in Brockmeyer, we interpreted an older but functionally equivalent version

of Federal Rule of Civil Procedure 4(f)(2)(A). Agreeing with the other courts that

had considered the question, we held that Federal Rule of Civil Procedure

4(f)(2)(A) does “not authorize service of process by ordinary first class

international mail.” Id. at 806–08. Service was ineffective under Federal Rule of

Civil Procedure 4(f)(2)(A).

Plaintiff alternatively contends that it properly served Defendants at a

Nevada address. Assuming arguendo that Defendants could properly be served at

that address, service here was nonetheless ineffective, because Plaintiff mailed the

complaint to the Nevada address, but did not attach the summons, as Federal Rule

of Civil Procedure 4(c)(1) requires.

Because the “attempted service” here was ineffective, “the default judgment

3 against [Defendants] cannot stand.” Brockmeyer, 383 F.3d at 809.1

REVERSED and REMANDED, with instructions to VACATE the

judgment.

1 We express no opinion on whether Plaintiff may properly serve Defendants. We hold only that Plaintiff has not done so to this point.