which the Federal Rules specifically require. Fed. R. Civ. P. 4(f)(C)(ii). These points might
seem technical, but the plaintiffs are asking this Court to extend its reach abroad, and thus careful
adherence to the requirements of international treaties and the Federal Rules of Civil Procedure is
called for,
Conclusion
For the foregoing reasons, the Court denies plaintiff's motion for entry of default and its

motion for entry of default judgment.

MATTHEW F. KENNELLY
United States District Judge
Date: February 25, 2003


service via the authorities of the country of destination, or through the originating country’s
consular officials in the country of destination. See Hague Conv. Arts. 3-9.

NSM’s later attempts at service come closer to the mark but still fall short of compliance
with the Federal Rules. Rule 4(f)(2)(C)(ii) says that so long as the applicable treaty permits it
and so long as the country of destination does not prohibit it, process may be served on an
individual in a foreign country via mailing from the clerk of court using any form of mail
requiring a signed receipt. Fed. R. Civ. P. 4(f)(2)(C)(ii). Rule 4(h) incorporates the same
procedures with respect to foreign corporations. Fed. R. Civ. P. 4(h)(2). The Hague Convention
states that absent an objection from the country of destination, there is no prohibition on sending
judicial documents, by postal channels, directly to persons abroad. Hague Conv. Art. 10.
Mexico does not appear to have a prohibition on service by registered mail, at least according to

a U.S. State Department Web site. See www. travel. state.gov/mexicoja html. (“There is no

provision in Mexico law specifically prohibiting service by international registered mail . . . .”).!
There are two flaws, however, with the form of service used by plaintiffs. NSM used
Federal Express, which is neither a “postal channel” (the term used in the Hague Convention) nor
“mail” (the term used in the Federal Rules), at least as that term is commonly understood. See,
e.g., Webster’s Third International Dictionary at 1361 (1993) (defining “mail” as “the bags of
letters and the other postal matter conveyed under public authority from one post office to
another”). And even were the Court to overlook this deviation from the Rules and the Hague

Convention, plaintiffs have failed to provide the Court with any evidence of a “signed receipt,”

' The same Web site notes, however, that registered mail service will not get the plaintiff
a judgment that is enforceable in Mexico.



Order Form (0697)

United States District Court, Northern District of Hlinois

Nam ofasienet Jute | Mathew F, Kennelly | Sin Jue Oe

CASE NUMBER 02 C 6482 DATE 2/26/03
CASE NSM Music, Inc. Vs. Daniel Villa Alvarez
TITLE

{in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly th
of the motion being presented.)

MOTION:

DOCKET ENTRY:

e3) o Filed motion of [ use listing in “Motion” box above.}

(2) 0 Brief in support of motion due

QB) 0 Answer brief to motion due___. Reply to answer briefdue____

(4) Q Ruling/Hearingon set fort

(5) q Status hearing[held/continued to} [set for/re-set for} on setfor at

(6) 5 Pretrial conference[held/continued to] [set for/re-set forlon_____setfor sat.
(7) a Trial{set for/re-set for}on__—_ at

(8) 5 (Bench/Jury trial] (Hearing] held/continued to saat

(9) 0 ‘This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CUFRCP4(m) Local Rule 41.1 CFRCP41(a\(1) CU FRCP4i(a)(2).

qo ff [Other docket entry} For the reasons set forth on the attached Memorandum Opinion and ©
the Court denies plaintiff's motion for entry of default and its motion for entry of default judgmen

di) (For further detail see order attached to the original minute order.]

| Nonotices required, advised in open court. Documen
Number

No notices required.
a umber of notices

iAR 0 8 2003

dane dockeued

Docketing 1o mail notices. a
Mai AQ 450 form. snscinable tials

Copy to judge/magistrate judge. 44n03 Agius Std sn

Notices mailed by judge’s staff.

Notified counsel by telephone.

date sailed notice

or Sepuiy S18 WY S- yyy ey
UT Caegpartegredin _—

initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NSM MUSIC, INC. and
NSM MUSIC GROUP, LTD.,

Plaintiffs,
vs. Case No. 02 C 6482
DANIEL VILLA ALVAREZ, NUEVAS
SINFONOLAS DE MEXICO, S.A. DE C.V.,
and SINFONOMEX, S.A. DE C.V.,

Defendants,

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiffs NSM Music, Inc. and NSM Music Group, Ltd. have sued defendant Nuevas
Sinfonolas de Mexico, S.A. de C.V., and Sinfonomex, S.A. de C.V,, both Mexican corporations,
and the companies’ president Daniel Villa Alvarez, a Mexican citizen, for various causes of
action. Plaintiffs, which sell jukeboxes and related products, allege that Sinfonolas, which was
plaintiffs’ distributor in Mexico, owes plaintiffs over $130,000 on sales of plaintiffs’ products
and have therefore sued Sinfonolas for breach of contract. Plaintiffs also seek to impose liability
on Villa and Sinfonomex for Sinfonolas’ breach on an alter ego theory. Finally, plaintiffs claim
that each of the defendants have continued to use NSM’s trademarks following plaintiffs’
termination of Sinfonolas as their distributor, in violation of the Lanham Act.

Plaintiffs have moved for entry of a default judgment against each of the defendants

based upon their failure to respond to NSM’s complaint. In response to concerns raised by the


Court regarding the sufficiency of service of process, NSM has submitted a brief, the affidavits
of service and an affidavit from counsel, and other supporting material explaining how service
was effected. According to NSM, service of the summonses and complaint was initially
attempted by a private server at Villa’s home in Mexico. After the door was slammed in his face,
the process server slipped the documents under the door. Plaintiffs then had the Clerk of this
Court issue alias summonses and send them via Federal Express to the defendants both at the
home address used by the process server and at the business address listed on Alvarez’ business
cards. Documents attached to NSM’s brief (specifically, a printout from Federal Express’s on-
line package tracking service) reflects that both sets of packages were successfully delivered.
NSM has not, however, provided the Court with a signed receipt of delivery.

The initial attempt at service in Mexico appears to have been improper. Federal Rule of
Civil Procedure 4(h), which governs service upon foreign corporations, specifically prohibits
personal service. See Fed. R. Civ. P. 4(h)(2). Rule 4(f, which governs service upon foreign
individuals, provides that service is to be made by internationally agreed means, such as those
authorized in the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361. Fed. R. Civ. P.
4()(1). Personal service in the manner attempted by plaintiffs is permitted in a foreign country
only if allowed by treaty or in the absence of internationally agreed means, and only so long as
the country of destination does not prohibit personal service. Fed. R. Civ. P. 4(£)(2)(C). Because
Mexico is a signatory to the Hague Convention (as of June 1, 2000), personal service is permitted
only if that treaty provides for it. It does not, at least not in the manner attempted by NSM (i.e.,

via a privately-retained process server). Rather, the Hague Convention contemplates personal