Case of the Day: Graphic Styles v. Men’s Wear Creations

The case of the day is Graphic Styles/Styles International, LLC v. Men’s Wear Creations (E.D. Pa. 2015). Graphic Styles brought a copyright infringement action against Men’s Wear Creations, a Hong Kong company. It sought to serve Men’s Wear several times by “international certified mail” (in reality, registered mail, not certified mail) at the Hong Kong address given on the company’s website, but in each case the return receipt “was not signed, but was stamped with a stamp bearing both Defendants’ names and the business address.” Graphic Styles therefore sought leave under FRCP 4(f)(3) to serve process by email and Facebook. It asserted that those means of service were permissible under Article 10(a) of the Hague Service Convention.

The court denied the motion. This is the right result. Longtime readers will know that in my view service by email or Facebook is impermissible when the Convention applies because neither email nor Facebook is within the scope of the “postal channel” as that term is used in Article 10(a). I acknowledge that I could be wrong about this: perhaps the term “postal channel” should be read to include email, and if that is so, then service by email in Hong Kong would be permissible, because Hong Kong has not objected to service under Article 10(a).

Unfortunately, though, the court’s decision rests on a fundamental mistake. Instead of holding that email is not within the postal channel, the judge adopted the incorrect view, held by a minority of American courts, that the Hague Service Convention does not authorize service of process via the postal channel at all, because Article 10(a) uses the word “send” instead of “serve.” I am not going to review the many reasons they are wrong in detail, but in summary: the universal view of the states party to the Convention, including the United States, is to the contrary, as is the view of the Permanent Bureau of the Hague Conference and of nearly all commentators; and the minority American position makes Article 10(a) superfluous.

The judge compounded the error by suggesting that FRCP 4(f)(3) could be used to authorize methods of service forbidden by the Convention in some cases. He noted the advisory committee comment, which reads:

The Hague Convention, for example, authorizes special forms of service in cases of urgency if convention methods will not permit service within the time required by the circumstances. Other circumstances that might justify the use of additional methods include the failure of the foreign country’s Central Authority to effect service within the six-month period provided by the Convention, or the refusal of the Central Authority to serve a complaint seeking punitive damages or to enforce the antitrust laws of the United States.

But it’s a mistake to read this in the way the judge does, because FRCP 4(f)(3), on its face, allows only methods “not prohibited by international agreement.” The advisory committee note’s reference to “special forms of service” is a little unclear but probably refers precisely to methods such as service by mail that are expressly permitted by the Convention. The thought seems to be that a US judge might find a foreign central authority’s failure to act to be sufficient reason to grant a motion to allow service by mail.

In short, although the judge’s ultimate decision was correct, almost everything she wrote is unfortunately incorrect. This case should not be followed.

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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