Case of the Day: Bluemedia, Inc. v. Sordid Ones BV
Posted on January 10, 2011
Our very first case, BluMedia, Inc. v. Sordid Ones BV, involves an attempt by a U.S. litigant to serve a Dutch defendant with a summons and complaint via email. According to the Complaint, BluMedia is “one of the largest marketers of adult entertainment and more specifically gay adult online entertainment.” BluMedia accused Sordid Ones, which it believed to be a Netherlands company with offices in IJmuiden, North Holland, and in Burbank, California, of trademark and trade dress infringement. The lawsuit was pending in the U.S. District Court for the District of Colorado. BluMedia first tried to serve the complaint by leaving the summons and complaint at what it thought was Sordid Ones’s Burbank office. The process server’s attempts at service were somewhat comical:
I knocked on the office door and heard movement inside the office however the door remained locked. I slid the Complaint and Summons under the door. Someone behind the door slid the document back out. I then slid the documents back under the door and the documents were pulled through by someone behind the door. The door was never opened.
After the court refused to enter a default based on such service, the process server attempted to serve the summons and complaint by registered mail, addressed to what BluMedia thought was Sordid Ones’s offices in IJmuiden. The documents were returned, marked “not claimed.” The process server had no better luck sending the documents to the Burbank office apparently by certified or registered mail: they were returned marked “attempted unknown.”
But despite all these efforts, BluMedia never thought to invoke the procedures of the Hague Service Convention and requesting that the District Court transmit the summons and complaint to the Dutch Central Authority. Instead, it moved for leave to serve the summons and complaint by email, without the need for any form of return receipt.
The Court denied BluMedia’s motion. It noted that the Hague Service Convention did not forbid service by email, and thus the court had the power to authorize service by email under Rule 4(f)(3) and 4(h)(2) of the Federal Rules of Civil Procedure. But the decision lay within the court’s discretion, and it was up to the plaintiff to show that it had made “reasonable efforts” to effect service of process. Because BluMedia had not even attempted service under the Hague Service Convention, the court concluded that BluMedia had failed to make sufficient efforts. Even if the Dutch address BluMedia had for Sordid Ones was inaccurate, the Dutch authorities might have information that would enable them to effect service.