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U.S. adult-entertainment impresario Ronald B. Brockmeyer filed suit against a British competitor, Marquis Publications, in 1998, complaining that it had infringed one of his trademarks. He served process by dropping a copy of his complaint in ordinary international mail, requesting no proof of delivery and addressing it to a post office box listed in a Marquis magazine. Although there is evidence that Marquis received the complaint, according to Judge Barry G. Silverman of the 9th U.S. Circuit Court of Appeals, it did not intervene in the proceedings conducted in a California federal court until after a $424,000 default judgment was entered against it. At that point, Marquis sought to overturn the judgment on the ground that service by international mail did not comport with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, an agreement signed by both the United States and the United Kingdom in 1969. Silverman, writing for a panel majority, upheld the default judgment in an opinion that highlighted a split among the circuits. The split turns largely on the meaning of the word “send” in one of the convention’s clauses. Brockmeyer v. May, No. 02-56283 (March 24). Send=serve? Article 10(a) of the convention states that “provided the state of destination does not object, the present Convention shall not interfere with-(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.” One school of thought, represented by the 5th and 8th circuits, has it that “send” means nothing but “send,” and can’t be stretched to encompass “serve.” For instance, in a 2002 decision, Nuovo Pignone SpA v. Storman Asia M/V, 310 F.3d 374, the 5th Circuit noted that other sections of the convention dealing with service of process expressly use the word “service.” The court concluded that “if the drafters had meant for article 10(a) to provide an additional manner of service of judicial documents, they would have used ‘service’ instead of ‘send.’ “ The 5th Circuit judged the true purpose of Art. 10(a) to be “providing a method of sending subsequent documents after service of process has properly been obtained.” Finally, it described the view that use of the word “send” was a mere oversight as a “fickle presumption” that defies the canons of statutory construction. In his opinion for the 9th Circuit, Silverman did not characterize “send” as an oversight, but did say that it “was used as a synonym for the word ‘serve,’ ” thus adopting a position first taken by the 2d Circuit in 1986. In support, Silverman pointed to the fact that Art. 10(a) appears in parallel with other provisions that spell out methods of service and to post-ratification statements by international authorities charged with evaluating the convention. But his overriding reason seemed to be that “The very purpose of the Convention is to provide the means for service abroad.” 9th Circuit Judge William Fletcher agreed with Silverman on the meaning of “send.” But he charged that by letting Brockmeyer’s default judgment stand, the court was creating a second split with courts, like the 11th Circuit, that have insisted that international service be effected by some method, such as registered mail, that ensures proof of delivery. Young’s e-mail address is [email protected].

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