Reflex Media, Inc. v. Apiriliaco Ltd. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 7 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REFLEX MEDIA, INC., a Nevada No. 17-55505
corporation,
D.C. No.
Plaintiff-Appellee, 8:16-cv-00795-JFW-JEM
v.
MEMORANDUM*
APIRILIACO LIMITED, dba
HoneyDaddy.com; et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted November 16, 2018
Pasadena, California
Before: GOULD, PARKER,** and MURGUIA, Circuit Judges.
The district court entered default judgment against Defendants-Appellants
Apiriliaco Ltd., Anatoli Feneridou, and E.C.A. Kartoir Secretarial Ltd. Defendants
appeal that decision on various grounds. We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, United States Circuit Judge for
the U.S. Court of Appeals for the Second Circuit, sitting by designation.
28 U.S.C. § 1291. Cf. Dreith v. Nu Image, Inc., 648 F.3d 779, 789 n.1 (9th Cir.
2011), Consorzio Del Prosciutto Di Parma v. Domain Name Clearing Co., LLC,
346 F.3d 1193, 1195 (9th Cir. 2003). We reverse and remand, with instructions to
the district court to vacate the default judgment.
Plaintiff-Appellee Reflex Media, Inc. contends that it properly served
process on Defendants in Cyprus—by service of process on Apiriliaco’s and
E.C.A. Kartoir Secretarial’s principal place of business, and on Feneridou’s
domicile. For the reasons that follow, we disagree and hold that Plaintiff did not
make proper service of the summons and complaint on any of the defendants.
Although Cyprus “has not objected to service by mail,” see U.S. State Dep’t,
Judicial Assistance Country Information: Cyprus Judicial Assistance Information,
https://travel.state.gov/content/travel/en/ legal/Judicial-Assistance-Country-
Information/Cyprus.html (last visited Nov. 20, 2018), “otherwise-applicable law”
did not authorize service by mail in this case by the means used by Plaintiff, Water
Splash, Inc. v. Menon, 137 S. Ct. 1504, 1513 (2017) (citing Brockmeyer v. May,
383 F.3d 798, 803–04 (9th Cir. 2004)). First, Plaintiff did not follow the procedure
specified in the Hague Service Convention for serving process on international
parties. See Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil and Commercial Matters arts. 3–6, Nov. 15, 1965, 20 U.S.T.
361, 658 U.N.T.S. 163. Service was ineffective under Federal Rule of Civil
2
Procedure 4(f)(1) because Plaintiff did not follow the procedure specified in the
Hague Service Convention. Second, Plaintiff—not the district court clerk—mailed
the summons and complaint to Defendants. For this reason, service was
ineffective under Federal Rule of Civil Procedure 4(f)(2)(C)(ii). Third, Plaintiff
did not “obtain prior court approval” before mailing the summons and complaint to
Defendants. Brockmeyer, 383 F.3d at 805–06. For this reason, service was
ineffective under Federal Rule of Civil Procedure 4(f)(3). See id. Fourth and
finally, in Brockmeyer, we interpreted an older but functionally equivalent version
of Federal Rule of Civil Procedure 4(f)(2)(A). Agreeing with the other courts that
had considered the question, we held that Federal Rule of Civil Procedure
4(f)(2)(A) does “not authorize service of process by ordinary first class
international mail.” Id. at 806–08. Service was ineffective under Federal Rule of
Civil Procedure 4(f)(2)(A).
Plaintiff alternatively contends that it properly served Defendants at a
Nevada address. Assuming arguendo that Defendants could properly be served at
that address, service here was nonetheless ineffective, because Plaintiff mailed the
complaint to the Nevada address, but did not attach the summons, as Federal Rule
of Civil Procedure 4(c)(1) requires.
Because the “attempted service” here was ineffective, “the default judgment
3
against [Defendants] cannot stand.” Brockmeyer, 383 F.3d at 809.1
REVERSED and REMANDED, with instructions to VACATE the
judgment.
1
We express no opinion on whether Plaintiff may properly serve Defendants. We
hold only that Plaintiff has not done so to this point.
4