99 F. Supp. 3d 519
E.D. Pa.2015Background
- Plaintiff Graphic Styles, a U.S. copyright-holder of fashion illustrations, sued Hong Kong–based defendants for alleged online use of its copyrighted drawings and sought damages and injunctive relief.
- Defendants operate a website listing a Hong Kong business address, email contacts, phone/fax, a P.O. box, and maintain a Facebook page advertising U.S. visits.
- Plaintiff attempted service by international certified mail multiple times (July–Nov. 2014); return receipts bore the defendants’ business stamp but were unsigned; defendants made no appearance.
- Plaintiff moved under Fed. R. Civ. P. 4(f)(3) for leave to serve by e-mail and Facebook posting as alternative service.
- The Court examined whether the Hague Convention permits service by mail/email and whether Rule 4(f)(3) authorizes alternative service now, concluding Plaintiff had not shown the necessity for alternative service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hague Convention Article 10(a) permits service by mail/email | Article 10(a) preserves the freedom to send judicial documents by postal channels and thus allows service by international certified mail and by analogy e-mail/Facebook if destination state does not object | Hague Convention’s text and structure distinguish "send" from "service"; service must follow Convention procedures, so Article 10(a) does not authorize initial service by mail/email | Court followed Fifth and Eighth Circuit reasoning: Article 10(a) does not permit initial service by mail or email; Hague procedures govern service |
| Whether Rule 4(f)(3) authorizes court-ordered alternative service (email/Facebook) now | Court has discretion under Rule 4(f)(3) to order other means not prohibited by international agreement, including e-mail/Facebook | Rule 4(f)(3) is discretionary but advisory notes make Convention procedures mandatory when available; plaintiff must show need (e.g., evasion, delay by Central Authority) before alternative service | Denied without prejudice: Plaintiff failed to demonstrate necessity or exhaustion of Hague options, attempts to serve by Convention methods were not shown; may renew later if Central Authority fails or other exigent facts appear |
Key Cases Cited
- Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004) (supports mail service under Article 10(a))
- Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986) (supports mail service under Article 10(a))
- Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374 (5th Cir. 2002) (holds Article 10(a) does not authorize service by mail)
- Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir. 1989) (rejects mail service under the Hague Convention)
- Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) (service of process is formal delivery sufficient to charge defendant with notice)
- Rio Properties, Inc. v. Rio Intern. Interlink, 284 F.3d 1007 (9th Cir. 2002) (illustrates alternative service when defendant evades service)
- Prestol Espinal v. Attorney General of U.S., 653 F.3d 213 (3d Cir. 2011) (statutory interpretation principles cited by the court)
- Bautista v. Attorney General of U.S., 744 F.3d 54 (3d Cir. 2014) (same canon of interpretation referenced)