Case of the Day: DFSB Kollective v. Bourne

The case of the day is DFSB Kollective Co. v. Bourne (N.D. Cal. 2012). Kollective is a Korean company that had exclusive rights to some Korean pop music recordings in the United States. Yousuf Bourne, the defendant, resided in Australia. He operated several websites and had accounts with several social media sites, and Kollective alleged that he was using his online presence to disseminate infringing copies of its songs.

Kollective filed a return of service indicating that it had had a private process server serve the summons and complaint by leaving copies at Bourne’s residence with an adult resident, and by mail. Kollective moved for a default judgment when Bourne failed to answer.

Although the judge didn’t address the issue, the service by mail was probably ineffective. Australia is a party to the Hague Service Convention and has not objected outright to service by postal channels. However, Australia’s Article 10 declaration requires that service through the postal channel be by registered mail, and the return of service gives no indication that Kollective used registered mail. Moreover, service by mail on an individual abroad requires that the clerk address and send the documents, see FRCP 4(f)(2)(C)(ii), which according to the return of service did not happen here.

Service by leaving the documents at the defendant’s residence is proper if and only if it is permitted under the law of Australia. Why is this so? Under FRCP 4(f)(2), the question is whether the Hague Service Convention “allows but does not specify” this method of service. The Convention does not expressly authorize this method of service, but Article 19 permits the use of methods that Australian law permits in cases of “documents coming from abroad, for service in its territory.” 1 Now, I can’t really opine on matters of Australian law let alone Western Australian law (Bourne’s residence was in Perth), but a quick online search turned up Order 9(1)(1) of the Rules of the Supreme Court 1971, which provides:

Subject to the provisions of any Act and these rules, a writ must be served personally on each defendant by the plaintiff or his agent.

The judge cited a case, Hadjdjelloul v. Global Machinery, 2011 WL 4860025, at *3 n.6 (D. Minn. Oct. 7, 2011), for the proposition that the method of service Kollective used was permissible, but the Hadjdjelloul case only says that service “carried out by a private-process server” is permissible; it does not address the means of delivery that are permissible under Australian law.

The >Australian Attorney General’s website 2 suggests that Australia gives wide latitude in service of foreign process:

Australia does not object to the use of private process servers for the service of overseas legal documents.

Australian courts require no further measures with regards to the service of initiating process documents of a foreign court. Service which complies with the requirements of the foreign court will be accepted by the local court.

All of this seems a bit tangled. Comments from Australian lawyers are welcome, but I am not confident that service by leaving the summons at the defendant’s home, without personal delivery to him, is permitted under the law of Western Australia, and thus I am not confident that it is permitted by the Convention.

Despite the iffy ruling on service of process, the magistrate judge recommended denial of Kollective’s motion for a default judgment on the grounds that the court lacked personal jurisdiction over Bourne.

Notes:

  1. There is an issue about whether Article 19 refers to methods of service expressly prescribed by foreign law, or rather it refers to methods of service not expressly forbidden by foreign law.
  2. I’ve removed this link, which no longer seems to work.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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