Ronald B. Brockmeyer Eromedia, Ltd v. David C. May, and Marquis Publications, Ltd

361 F.3d 1222, 58 Fed. R. Serv. 3d 18, 2004 U.S. App. LEXIS 5477, 2004 WL 574980

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 24, 2004
• Docket: 02-56283
• Status: Published

Opinions

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 <<0>>, 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. Hay-Imrst, 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.” Acker-viann 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 Ack-ermann 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 1.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 participated in both of the Special Commission meetings, and cooperated with the production of the Handbook, it clearly could have objected to this subsection. Consequently, under the terms of the Hague Convention, service by mail is permitted within the United Kingdom.

B. Service of Process By Mail to a Post Office Box

We next address the validity of sending service of process by mail to a post office box. Brockmeyer contends that the post office box address was listed in the 3rd/4th quarter 1997 issue of Marquis Magazine, while Marquis counters that it has maintained the same registered address since November 1996, and it should have been served there.

United Kingdom’s Civil Procedure Rules allow service of process on registered companies by alternative methods. Civil Procedure Rule 6.5(6) states that a document can be sent or transmitted to, or left at either the principal office of the company or “any place of business of the company within the jurisdiction which has a real connection with the claim.” See Civil Procedural Rules (1998) U.K. SI 1998/3132 Pt 6(1) r 6.5(6). As the district court pointed out, Civil Procedure Rule 6.5 also states that the importance of service is to bring the pending action to the attention of the company. See id. at commentary on effect of rule, 6.5.5.

Although Marquis contends that service to a post office box is not proper under English law, it points to no authority that prohibits it. Nor does Marquis deny that the post office box is an address it held out to the public in its magazine. It stands to reason that an address Marquis printed in its own publication, which goes to the heart of Brockmeyer’s trademark claim, can be considered a “place of business ... which has a real connection to the claim.” Mailing service to Marquis’ post office box was therefore proper.

C. Service by regular mail

Marquis contends that if the Hague Convention is interpreted to allow service by mail, it requires such service to be effected by registered or certified mail to ensure actual receipt. We disagree.³ The Hague Convention discusses service by postal channels generally, and makes no reference to registered or certified mail. Moreover, service by regular mail is allowed under English domestic law, and the Hague Convention is intended to not interfere with a member country’s own methods for service. See Hague Convention, Article 19, U.S.C.S. on International Agreements at 269. Also, requiring service by registered or certified mail would nullify service to a post office box, which as discussed above, is not prohibited by English domestic law.

Most of the federal cases discussing foreign service of process by mail involve either registered or certified mail or service by FedEx or other mail delivery service. See, e.g., Ackermann, 788 F.2d at 834 (registered mail to Germany); Bankston, 889 F.2d at 172 (registered mail to Japan); Nuovo Pignone, 310 F.3d at 378 (service by FedEx in Italy); EOI Corp. v. Medical Mktg. Ltd., 172 F.R.D. 133, 134 (D.N.J.1997) (service by DHL in England). In a dicta discussion of whether the Hague Convention requires “actual receipt,” however, this court cites with approval Randolph v. Hendry, 50 F.Supp.2d 572 (S.D.W.Va.1999), where the court concluded the Hague Convention did not require service of process by registered or certified mail. Id. at 578; see also Lidas, 238 F.3d at 1084.

The Handbook provides further support that “actual receipt” is not required under the Hague Convention:

It is accepted that service, made in the requested State by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, establishes a sufficient guarantee that the recipient has actual notice in time to enable him to defend himself.

Handbook, Section I, p. 25, 1992 (discussing how to achieve objectives of Convention). By complying with a method of service prescribed by England’s domestic laws, Brockmeyer established a sufficient guarantee that Marquis had actual and timely notice.⁴ In light of the fact that Brockmeyer did comply with the Hague Convention by mailing service of process to Marquis’ post office box, we need not address the question of whether notice is the equivalent of service of process.

The district court did not abuse its discretion in denying Marquis’ motion for relief from judgment because Brockmeyer fulfilled its duty under the Hague Convention when it served by mail a copy of the summons and complaint to Marquis’ post office box. Also, Marquis failed to demonstrate any grounds for relief under Rule 60(b). See American Ass’n of Naturo-pathic Physicians, 227 F.3d at 1108.

AFFIRMED.

1 . Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents In Civil Or Commercial Matters, opened for signature November 15, 1965; entered into force for the United States February 10, 1969; for the United Kingdom February 10, 1969; 20 U.S.T. 361; 658 U.N.T.S. 163; full text reprinted in the United States Code Service (U.S.C.S.) on International Agreements at 265-310.

2 . 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, 2d. Ed., p. 42, 1992.

3 . Our colleague in dissent argues that service through international mail may only be effected by Rule 4(f)(2)(C)(ii), which requires registered mail, or through Rule 4(f)(3), which authorizes the district court to allow other methods of service. We disagree. As we see it, the Hague Convention permits service by mail if allowed in the country where papers are being served; Rule 4(f)(2)(A) thus acts as a conduit for permitting service by means of the service laws of the country where served. In our view, though reasonable minds could (and do) disagree, we interpret Rule 4(f)(2)(A) to permit an American plaintiff to serve an English defendant through the mail, just as an English plaintiff would be so allowed. It should make no difference that service in this case was mailed from the United States, and not from Britain; what is vital to our analysis is that service by mail is allowed in Britain, and Rule 4(f)(2)(A) effectively incorporates British service rules for service of process from the United States to England.

4 . Marquis appeared to have actual notice, as e-mails submitted by Brockmeyer show that Marquis' publisher,. Peter Czernich, planned to hire an American lawyer to make a special appearance in the Southern District of New York. Although Marquis objected to the emails being admitted, Marquis did not deny it received notice.