The case of the day is Hazim v. Schiel & Denver Book Group (S.D. Tex. 2013). Omar Hazim was the author of “Islam in the Heartland of America.” He sued Schiel & Denver Publishing Ltd., Schiel & Denver Book Publishers, and Schiel & Denver Book Group for copyright infringement, breach of contract, unfair trade practices, etc. Schiel & Denver Book Publishers and Schiel & Denver Book Group were UK firms. Hazim had previously and unsuccessfully sought leave to serve the UK defendants by alternate means under FRCP 4(f)(3). 1 He then served the papers on the UK defendants by Fedex and apparently by private process server (it’s not exactly clear from the decision how service was effected, which as will shortly appear was part of the problem). Hazim sought entry of default when the UK defendants did not answer.
The judge, following the erroneous minority US view, held that Article 10(a) of the Convention does not permit service by mail because it refers to “sending” rather than “serving” documents. Service by mail might still be permitted under FRCP 4(f)(2)(C)(ii) and Article 10(c) of the Convention if the foreign country’s law permits service by mail; but FRCP 4(f)(2)(C)(ii) requires the documents to be mailed by the clerk, not the party, and in any event Hazim had not shown that UK law permits service by mail. So service by Fedex was out. Hazim’s return of service was insufficient to show that the personal service was valid. The judge therefore denied the motions for entry of default.
- The judge denied his motion on the dubious grounds that Hazim had not shown that he had made sufficient efforts to serve process by standard means. This is a permissible ruling, because the judge had broad discretion, but I don’t like decisions that make FRCP 4(f)(3) a disfavored last resort. ↩