Case of the Day: Epic Games v. Mendes

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.

3 responses to “Case of the Day: Epic Games v. Mendes”

  1. The resolution, quite simply, is for the United States government to bear the cost of serving (that is, have DoJ pay PFI instead of charging applicants). That will make the problem go away in the most appropriate way.

    The Russians are right on this one.

    1. Hmm. That is not the view of the Special Commission. See Paragraphs 52-54 of the 2003 Conclusions & Recommendations, which each later Special Commission has recalled. The footnotes to Paragraphs 52-54 make it clear that Russia does not support this view, but Russia’s position is in my view plainly wrong and not accepted by other states.

  2. […] recently noted the recurring issues that Russia’s unilateral refusal to execute US requests for service of […]

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