## Facts

- Ronald Brockmeyer and Eromedia, Ltd. owned and used the “O” trademark for adult entertainment media and novelties.
- Plaintiffs filed a federal action alleging trademark infringement and related state-law claims against, among others, Marquis Publications, Ltd., a British company.
- Plaintiffs first attempted to serve Marquis in England by sending the summons and complaint (with a waiver request) via ordinary first-class mail to a post office box; Marquis did not respond.
- The case was transferred from the Southern District of New York to the Central District of California.
- Facing an order to show cause for lack of prosecution, plaintiffs made a second service attempt by mailing only the summons and complaint by ordinary first-class mail to the same English post office box.
- Marquis did not appear; the district court entered default and then default judgment against Marquis.
- Marquis moved to set aside the default judgment, arguing service abroad by ordinary first-class mail was invalid; the district court denied the motion, concluding the Hague Service Convention did not prohibit mail service and that ordinary mail sufficed.
- Marquis appealed the denial of relief from the default judgment.

## Issues

1. Whether the Hague Service Convention prohibits serving a foreign defendant by international mail.
2. If the Convention does not prohibit mail service, whether Federal Rule of Civil Procedure 4(f) affirmatively authorizes service abroad by ordinary first-class international mail on these facts.
3. Whether a default judgment based on such service must be vacated.

## Decision

- The Ninth Circuit reversed the order denying Marquis’s motion to set aside the default judgment.
- The court held the Hague Service Convention does not itself prohibit (does not “interfere with”) service of process by international mail.
- The court held, however, that plaintiffs’ mail service was ineffective because it was not affirmatively authorized under Federal Rule of Civil Procedure 4(f) as performed in this case.
- The case was remanded with instructions to vacate the default judgment against Marquis.

## Legal Principles

- The Hague Service Convention does not, by itself, bar service of process by international mail; it is not a standalone source of authorization for mail service.
- A method of service abroad must be affirmatively authorized by federal law, including the categories specified in Federal Rule of Civil Procedure 4(f).
- Service by international mail is ineffective when the plaintiff fails to comply with Rule 4(f)’s requirements, including obtaining court authorization when relying on Rule 4(f)(3).
- A default judgment entered without effective service of process cannot stand and must be vacated.

## Conclusion

The Ninth Circuit held that although the Hague Service Convention does not prohibit service by international mail, plaintiffs’ use of ordinary first-class mail to serve a British defendant was not authorized under Rule 4(f); accordingly, the default judgment was reversed and the district court was instructed to vacate it.


Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004)