Case of the Day: Epic Games v. Mendes
Posted on February 1, 2018
The case of the day is Epic Games v. Mendes (N.D. Cal. 2018). Epic had a copyright claim against Konstantin Vladimirovich Rak, who lived in Russia. It sought leave to serve process on Rak, whose address was known, by email under FRCP 4(f)(3).
We have seen this problem before. Russia will not execute US requests for service under the Hague Service Convention, but on the other hand, Russia has objected to service under Article 10. So the US plaintiff has no perfect options. The court granted the motion, as many other courts have.
I understand the motivation for these decisions—when the plaintiff has no means to serve process, then he is denied justice. But as I’ve previously argued, the service does not comply with the Convention and therefore seems improper under FRCP 4(f)(3). The Convention contemplates resolving disputes about the operation of the Convention such as the dispute that is motivating Russia to refuse to comply with the Convention by diplomatic means. But this dispute has lasted for years with no resolution in sight.