Case of the Day: Brown-Thomas v. Hynie

James Brown
Credit: Heinrich Klaffs (CC-BY-SA)

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.

3 responses to “Case of the Day: Brown-Thomas v. Hynie”

  1. Graham Bridgman

    I’m afraid that I have to disagree with “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 Special Master, using a method of service she determines, which didn’t happen here.” (nb it should be the Senior Master).

    I disagree because for all practical purposes the Senior Master does not get involved in article 10 serves, and so she makes no determination as to the method of service.

    Certainly the Civil Procedure Rules (CPR) refer to service of foreign documents in England & Wales but CPR 6.51 (“The Senior Master will determine the method of service”) relates to those documents being served further to CPR 6.50 (“The Senior Master will serve a document to which this Section applies upon receipt of…”) and where (eg) “The Senior Master will send to the person who requested service – (a) a certificate [of service or non-service]” (CPR 6.52(a) etc). Thus, for the purposes of the Hague Service Convention, this part of CPR relate to service further to article 5, not article 10.

    Article 10 serves simply don’t need to involve the court at all because “the present Convention SHALL NOT INTERFERE WITH” (emphasis added) (eg 10(c)) “the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination”,

    Now, certainly, Senior Master Whittaker expressed an opinion that only solicitors are “competent persons” in the UK following the letter from the Foreign & Commonwealth Office referred to in the Hague commentary on article 10, and thus a process server instructed direct is not such a person. However, that doesn’t mean that service is invalid because the Senior Master (or in practical terms the Foreign Process Section of the High Court of Justice, Queen’s Bench Division) isn’t involved in determining the method of service.

    As a solicitor I regularly arrange for service of US process in England & Wales further article 10(b) or 10(c). Provided that this is “by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory” (article 15(a)) it is valid, but the court has no role in the matter (indeed, if you read the responses of the UK to the Hague Questionnaire of July 2008 you will see “English/Welsh solicitors receive documents directly from abroad.” stated more than once).

    1. Thanks Graham! That is a fair comment, and I am not vouching for the correctness of what the court said about English law—only that the court got to the right result for the wrong reason. I do think that under English law a US litigant cannot effect service via a private process server without going through a solicitor, in light of the UK position on Article 10(c). In other words, the solicitor is the competent person, and he or she engages the process server.

    2. Thanks also for noting the “Special Master” error, which I have corrected. We use “Special Master” a lot here, so that was just a lapsus linguae. (I just had the desire to type “lapsus linguae,” apologies for the ridiculousness of the phrase).

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