Noting split in Circuits, Ninth Circuit holds that service of process may be accomplished under Hague Convention by regular mailing to Defendant's English post office box because such can be considered "place of business" under foreign nation's law.
Both the U.S. and United Kingdom are signatories to the Convention. Article 19 of the Convention provides that service of process from abroad may be made by any method permitted by the internal law of the receiving state. Also, Fed.R.Civ.P. 4(f)(2)(A) permits service of process in a manner prescribed by the law of the foreign country.
Ronald Brockmeyer distributes adult entertainment products under the trademark "O," including a fetish magazine by the same name. In August 1998, Brockmeyer and his company Eromedia (jointly Brockmeyer) filed a trademark infringement action against several parties, including the British company, Marquis Publications. To accomplish service of process, Brockmeyer mailed a copy of the summons and complaint to Marquis at their post office box address listed in the 1997 edition of Marquis Magazine. Subsequently, Brockmeyer obtained a $424,000 default judgment against Marquis.
The district court denied Marquis' claim that service had been improper under the Hague Convention. Marquis appealed.
The U.S. Court of Appeals for the Ninth Circuit affirms the district court order denying Appellant's motion to set aside the default judgment. The service accomplished through regular mail is valid because, first, Article 10(a) of the Convention permits service by mail and, second, England's domestic laws do not prohibit service by mail to a post office box.
Article 10(a) of the Convention provides: "[P]rovided 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 ..." The Court notes that the Second Circuit has held in Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986), that "send" means "service." The Eighth Circuit, however, has held that "send" does not include the service of process but is a method for transmitting judicial documents after service has been accomplished. The Fifth Circuit disallowed service of process on an Italian defendant 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. ..."
"Within this circuit, district courts are split. [One district court] ... concluded that service of process by mail is consistent with the overriding purpose of the Convention to develop of system for effecting service of process in other countries ..."
"Some district courts, on the other hand, ... conclude[d] that the word 'send' in Article 10(a) is not the equivalent of the word 'service.' ..."
"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. ... 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.'" [Slip op. 6-8]
The 1983 "Practical Handbook on the Operation of the Hague Convention of 15 November 1965 of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters," which was produced in cooperation with the signatory states representatives, states that unless a member country specifically objected to service by mail, it should be permitted. Neither the U.S. nor the United Kingdom objected to Article 10(a).
The Court then turns to the validity of service to a post office box. The United Kingdom's Civil Procedure Rules allow for service of process on registered companies by alternative methods. Under Civil Procedure Rule 6.5(6), 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 Procedure Rules 1998, U.K. SI 1998/3132 Pt 6(I) r 6.5 (6)]. Here, Marquis held out the post office box address to the public in its magazine. The Court thus finds that the post office box can be considered a "place of business ... which has a real connection to the claim."
The Court therefore also rejects Marquis' claim that service should have been made by registered or certified mail to ensure actual receipt.
"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 not to interfere with a member country's own methods for service. See Hague Convention, Article 19 ... 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." [Slip op. 11-12]
The Court notes in a footnote that Brockmeyer introduced, over Marquis' objection, e-mails that indicated Marquis' actual notice of the action. Marquis did not deny that it had received notice.
The dissenter considers the majority opinion a dramatic departure from existing law, noting that such kind of service of process would not be permissible under U.S. law.
"Today's decision will cause mischief at home and unhappiness abroad. I agree with the majority's conclusion that Article 10(a) of the Hague Convention does not 'interfere' with service by mail. But I strongly disagree with its conclusion that Rule 4(f)(2)(A) authorizes service of process by international mail. Not only is the existing case law uniform in holding that service by international mail is not authorized under Rule 4(f)(2)(A). There is also no need to depart from this consistent understanding of the rule, for a competent attorney already has ample means of serving process on a foreign defendant under Rule 4(f) without relying on the extraordinary expedient of ordinary international first class mail." [Slip op. 59-60]
[Editors' Note: A U.S. court had previously dismissed a trademark infringement action brought by Brockmeyer against the publisher of Oprah's "O" Magazine because the actual confusion by the two magazines was de minimis. See Brockmeyer v. The Hearst Corp., 248 F.Supp. 2d 281 (S.D.N.Y. 2003).]
Citation: Brockmeyer v. May, 361 F.3d 1222 (9th Cir. 2004).