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Beckely v. Raith

United States District Court, Ninth Circuit

October 9, 2013

MATTHEW BECKELY, p/k/a DYLAN MATTHEWS and D-MATT, and d/b/a AMERADA MUSIC, Plaintiff,
v.
REINHARD RAITH, in his personal and professional capacities, p/k/a

ORDER DENYING SERVICE OF IFP COMPLAINT OVERSEAS AT PUBLIC EXPENSE AND ORDER FOR PLAINTIFF TO APPEAR IN PERSON AT NEXT CASE MANAGEMENT CONFERENCE (NOVEMBER 7, 2013)

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this contract and copyright dispute, pro se plaintiff moves for reconsideration and to compel service overseas. The motions are DENIED. Plaintiff is further ordered to appear in person at the next case management conference.

STATEMENT

As this action comes to the undersigned judge, plaintiff has been granted in forma pauperis status by the previous judge. Because of plaintiff's IFP status, the United States Marshals Service had undertaken service of the complaint. The previous judge, however, informed plaintiff on July 23 that the Marshals could not serve overseas defendants and therefore ordered that plaintiff would be responsible for service of those defendants (Dkt. No. 13). Plaintiff now moves for reconsideration of that order and to compel our Clerk to serve the overseas defendants.

Plaintiff is a resident of Michigan, but selected this district for his action. Plaintiff is suing American musical artists and German musical producers and promoters (Dkt. No. 1-1 ¶¶ 5-13). Plaintiff's lengthy pleadings allege that he had various contractual agreements with defendants and participated with them, in some capacity, to create musical productions. Plaintiff's claims boil down to three items. First , plaintiff alleges that defendants breached their contracts with him. Second , plaintiff alleges that defendants violated his copyright in the musical production they allegedly created together. Third , plaintiff alleges defendants damaged his reputation in the music industry by circulating several communications about him and his conduct ( id. ¶¶ 94-233).

Plaintiff failed to attend the September 11 ADR phone conference and the September 12 case management conference. An order to show cause was issued on September 13. Plaintiff argues that he had technical difficulties receiving notice of the appearances due to his inability to access PACER, unreliable email, and a power outage (Dkt. Nos. 36, 43).

ANALYSIS

This is not a typical IFP action. A typical IFP action would involve, for example, an impoverished homeowner being sued to remove him from his home. Here, our plaintiff is IFP. He is seeking large sums and injunctive relief based on his commercial dealings. Usually copyright infringement actions are brought by counsel. Evidently no counsel was interested in taking plaintiff's case.

This order addresses two problems: plaintiff's attempt to compel the clerk to serve the overseas defendants, all at taxpayer expense, and plaintiff's failure to appear at his ADR phone conference and case management conference.

1. OVERSEAS SERVICE.

The first problem is plaintiff's request that the taxpayers pay for overseas service of his complaint. Plaintiff argues that because of his IFP status, the taxpayer should do this for him. Plaintiff argues that printing costs for his 200 page complaint (including attachments) and costs to comply with the Hague Convention are prohibitive. Plaintiff therefore requests that the Clerk print his complaint and send it by first-class mail to defendants in Germany.

Service by first-class mail would be inadequate under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Proper service to Germany would involve service through a "Central Authority" and may require translation of plaintiff's entire complaint. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638. While Article 10 of the Convention allows service by mail, Germany has objected to that provision. The German defendants cannot, therefore, be served by mail. United States Department of State, Service of Legal Documents Abroad, http://travel.state.gov/law/judicial/judicial_680.html (last visited Oct. 8, 2013). The only alternative appears to be service through Germany's "Central Authority" which would involve considerable cost. This order declines to require taxpayers to cover these service and translation costs.

The Third Circuit has held that "the granting of IFP status exempts litigants from filing fees only. It does not exempt litigants from the costs of copying and filing documents [or] service of documents other than the complaint." Porter v. Dept. of Treasury , 564 F.3d 176, n.3 (3rd Cir. 2009). Our court of appeals has not decided the issue, namely, whether the Court must arrange for serving overseas defendants at public expense when the IFP plaintiff is not incarcerated and the ...


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