Case of the Day: Brown-Thomas v. Hynie
Posted on February 12, 2019
The case of the day is Brown-Thomas v. Hynie (D.S.C. 2019). James Brown, the hardest working man in show business, died leaving a will that made no provision for his wife, Tommie Rae Hynie, or their son, James Brown II, born in 2001. The two challenged the will and also sought statutory rights as the surviving spouse and as heir, respectively. While the proceedings regarding the will were pending, the members of the family who opposed the claims of Hynie and the younger Mr. Brown sued them in the Central District of California on claims under the Copyright Act and for a declaratory judgment. Hynie and Mrspe. Brown Jr. moved to dismiss. Both resided in the United Kingdom, and the plaintiff sought to serve them through a process server. They argued that the service of process was insufficient.
The court correctly held that the service on Hynie was improper. But the reasoning was incorrect in some of the details. The judge followed the erroneous decision in Baskett v. Autonomous Research LLP (S.D.N.Y. 2018), holding that a private process server is a competent person for purposes of UK law under Article 10(c) of the Convention. This is at odds with the opinion of Senior Master Whittaker, formerly the central authority for England and Wales, which makes it clear that only solicitors, not private process servers, are competent. But the judge reached the right conclusion by pointing out that under English law, the service (in a case subject to the Convention) must be performed under the auspices of the Senior Master, using a method of service she determines, which didn’t happen here.
The issue of service on Mr. Brown Jr. was more complicated, because he was a minor at the time. Service abroad on a minor is governed by FRCP 4(g), not FRCP 4(f). This raises an interesting problem. FRCP 4(g) permits service abroad on minors under Rule 4(f)(2)(A) (service as prescribed by the foreign country’s law), (f)(2)(B) (service as the foreign state directs in response to a letter rogatory), or (f)(3) (service by alternate means), but it does not permit service abroad on minors under Rule 4(f)(1) (service authorized by the Convention). But that problem doesn’t arise here: the service on the minor failed for the same reason the service on the wife failed: it was improper under English law.