Service of Process

• Author: International Law Group

The following case considers the validity of service of process by an U.S. plaintiff on an English defendant through regular mail to a post office box under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (Hague Convention) (November 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163).

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...