Judicial Assistance (Transnational Service of Process)

• Author: International Law Group

[Editors' Note: The following case involves a controversial matter where the Ninth Circuit previously issued a different opinion and later withdrew it. Initially, noting a split in the Circuits, the Ninth Circuit held that service of process could be accomplished by mail to an English post office box. See Brockmeyer v. May, 361 F.3d 1222 (9th Cir. 2004), 2004 International Law Update 53. The Court subsequently issued the following substitute opinion.]

Ronald B. Brockmeyer (plaintiff) owns the trademark O, under which he publishes and distributes adult entertainment media and novelties through his company Eromedia. On August 3, 1998, plaintiff and his company sued Marquis Publications, Ltd. (Marquis or defendant) and several other defendants in a New York federal court, alleging trademark infringement and various state-law breaches. Marquis is a company registered under British law.

Plaintiffs' counsel tried twice to serve process on Marquis. On October 7, 1998, he sent the summons and complaint, together with a request for waiver of service, by regular first class mail to a post office box in England. On April 5, 1999, the New York court transferred the suit to the Central District of California. In October 1999, plaintiff again mailed suit papers (but without the waiver request) to the same P. O. Box. In neither case did Marquis respond.

On February 22, 2002, the district court entered a default judgment of $410,806.12 against Marquis and two German defendants. Marquis moved independently to set aside the default judgment against it. Citing the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents [20 U.S.T. 361; T.I.A.S. 6638; 658 U.N.T.S. 163] [HSC], it urged, inter alia, that plaintiffs should have served it 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 service on an English defendant by ordinary international first class mail was valid under the HSC. Marquis appealed. The U.S. Court of Appeals for the Ninth Circuit reverses and remands with instructions to vacate the judgment.

Since plaintiffs had to serve Marquis abroad, the HSC controls the validity of that service to the extent that it applies. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988) ("[C]ompliance with the Convention is mandatory in all cases to which it applies."). Ratified by the U.S. in 1965, the HSC has 49 parties as of January 1, 2003. The Convention innovatively regularized and liberalized service of process in international civil and commercial...