United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
have been attempting to serve their second amended complaint
upon Defendants Matt Palazsynski (“Palazsynski”),
Dun Pai Fireworks Group (“DPFG”), and Dun Pai
Manufacturing (“DPM”) for over a year.
See (Docket #66 and #76). Their final deadline to
dismiss those defendants or seek their default was May 21,
2017. (Docket #76). On May 19, 2017, Plaintiffs moved for
entry of default as to each defendant pursuant to Federal
Rule of Civil Procedure (“FRCP”) 55(a). (Docket
#77). Palazsynski opposed the motion on May 30,
2017. (Docket #84 and #85). DPFG and DPM did not. Plaintiffs
replied to Palazsynski's opposition on June 13, 2017.
is in China and the Dun Pai companies are based there. The
central issue in Plaintiffs' motion, then, is whether
they were properly served and thus subject to default (there
is no question that they have not responded to the second
amended complaint). FRCP 4(f)(1) provides that service in a
foreign country may be accomplished “by any
internationally agreed means of service that is reasonably
calculated to give notice, such as those authorized by the
Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents [(the “Hague Service
Convention”)][.]” The United States and China are
signatories to the Hague Service Convention. See The
Hague Conventions, Signatories, Ratifications, Approvals, and
Accessions (June 7, 2017), https://www.hcch.net/en/
15 of the Convention describes when default is appropriately
taken in suits involving international defendants. It states:
Where a writ of summons or an equivalent document had to be
transmitted abroad for the purpose of service, under the
provisions of the present Convention, and the defendant has
not appeared, judgment shall not be given until it is
established that -
the document was served 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, or
(b) the document was actually delivered to the defendant
or to his residence by another method provided for by this
Convention, and that in either of these cases the service or
the delivery was effected in sufficient time to enable the
defendant to defend.
Each contracting State shall be free to declare that the
judge, notwithstanding the provisions of the first paragraph
of this article, may give judgment even if no certificate of
service or delivery has been received, if all the following
conditions are fulfilled -
the document was transmitted by one of the methods provided
for in this Convention,
(b) a period of time of not less than six months,
considered adequate by the judge in the particular case, has
elapsed since the date of the transmission of the document,
no certificate of any kind has been received, even though
every reasonable effort has been made to obtain it through
the competent authorities of the State addressed.
Notwithstanding the provisions of the preceding
paragraphs the judge may order, in case of urgency, any
provisional or protective measures.
Service Convention, February 10, 1969, 20 U.S.T. 361,
T.I.A.S. No. 6638, 658 U.N.T.S. 163. In ratifying this
treaty, the United States issued a declaration activating
Paragraph Two. Id., Designations and Declarations
Made on the Part of the United States in Connection with the
Deposit of the United States Ratification, Declaration No. 3.
contend that they have complied with Paragraph Two's
prerequisites for default judgment. They used an
international process serving company to transmit the second
amended complaint to Chinese authorities in April 2016.
(Docket #78 at 2). Chinese authorities never acknowledged
receipt of the second amended complaint, nor have they
responded to requests for updates on the status of service.
Id. More than six months (in fact, more than a year)
has elapsed since the service documents were delivered.
does not genuinely contest these facts. Instead, he maintains
that Paragraph One does not allow default in this instance.
As quoted above, Paragraph Two states that it applies
“notwithstanding the provisions of the first paragraph
of this article[.]” As applied to our case, Paragraph
One provides that default judgment is improper unless
Plaintiffs show 1) Palazsynski was served in accordance with
Chinese law, or 2) the service documents were actually
delivered to him, his residence, or as otherwise provided in
the Hague Service Convention. Palazsynski has produced a
notice from the People's Court of Liuyang, the judicial
body overseeing the jurisdiction where Palazsynski and the
Dun Pai companies were to be served, stating that it never
received a summons for this case and was never ordered to
serve anything related to this case. (Docket #86-2) (a
translated copy of the document). The Liuyang court further
states that it would be responsible for such service.
Id. Palazsynski argues that this affirmative
evidence of non-service activates Paragraph One's
prohibition on judgment, which cannot be overridden by
Court must disagree with Palazsynski's reading of Article
15. Paragraph Two applies when “no certificate of
service or delivery has been received.” The
“certificate” in question is one prepared and
delivered by the “central authority” for process
service each signatory is required to establish.
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486
U.S. 694, 698 (1988). The central authority receives requests
for service, facilitates service in accordance with the
state's internal law, and is then required to provide a
certificate of service to the requester, providing
information on how service was, or was not, accomplished.
Id. at 699; 20 U.S.T. 361, Arts. 5 and 6. It is
uncontested that Plaintiffs received no such certificate and
otherwise complied with Paragraph Two's requirements.
Palazsynski's own evidence of non-service is, therefore,
other words, Paragraph One prohibits judgment unless a person
has been served. Signatories, including the United States,
can elect to weaken this requirement by adopting the
procedure of Paragraph Two. Only a certificate issued by
China's central authority can affect whether that
procedure is properly invoked. Affirmative evidence of
non-service from the defendant fits nowhere within Article
15's default judgment protocol. In this case, the
existence of such evidence is unsurprising, given that the
Chinese authorities have never responded to Plaintiffs'
transmission of the service documents or requests for
position is further undermined by a complete absence of
citation to relevant case law. While opinions on this narrow
question are admittedly scarce, it is difficult for the Court
to agree with him when he provides nothing more than his own,
unsupported interpretation of Article 15. Though Plaintiffs
provide some citations, they are largely inapposite, because
they deal with lacking evidence of service, not affirmative
evidence of non-service. See Marschauser v. Travelers
Indem. Co., 145 F.R.D. 605 (S.D. Fla. 1992); Fox v.
Regie Nationale des Usines Renault, 103 F.R.D. 453 (W.D.
Tenn. 1984). Most of the opinions are also at least fifteen
years old. In the absence of recent guiding precedent, the
Court finds it most prudent to reject Palazsynski's
strained reading of Article 15.
Court will grant Plaintiffs' motion and enter default
against Palazsynski. Of course, if Palazsynski moves to set
aside this entry of default pursuant to FRCP 55(c) and
chooses to defend this case on its merits, the Court would
consider that request. As of today, however, he has decided
to avoid the merits and suffers the attendant consequences.
Finally, because the DPFG and DPM have not opposed
Plaintiffs' motion, and because it is appropriate to
enter default against them for the same reasons as
Palazsynski, the Court will enter default as to those
entities as well.
IT IS ORDERED that Defendant Matt Palazsynski's second
motion to supplement (Docket #89) be and the same is hereby
FURTHER ORDERED that Plaintiffs' motion for entry of
default (Docket #77) be ...