Paris Court of Appeal holds that French Plaintiffs’ failure
to have civil complaint, otherwise proper in form, delivered to California
Defendant in time for Defendant to prepare its defense violated Principle of
Contradictory Proceedings
This is an appeal from a judgment of the Paris District
Court (Tribunal de Grande Instance) dated June 22, 2007. The Court handed down
its judgment in the course of infringement proceedings between M. Jean‑Yves X,
the author and performer of sketches for radio and television (Plaintiff) and
MYSPACE Inc, an American company (Defendant) headquartered in California. The
Defendant ran an internet website describing itself as “... a social network
service which allowed its members to create unique personal profiles online in
order to communicate with old and new friends.”
The Plaintiff complained that, without his consent, a page
dedicated to him appeared on the Defendant’s website. It included his
photograph, personal information about him, plus interviews and video
recordings of his sketches. He filed proceedings in the Paris court claiming
breach of copyright and infringement of his moral rights.
He obtained from the Paris interlocutory judge leave to
serve a summons upon the American company abroad requesting the latter to
appear before the Paris court on a specified date. The leave included a
condition that the summons be “delivered” to the Defendant by a certain date at
the latest. The court sent the summons to the appropriate American
International Process Forwarding Authority (IPFA) with a request to see to it
that it gets served on the Defendants, and on the same date it was mailed from
Paris to the Defendants.
The IPFA acknowledged receipt of the summons. It refused to
serve it on the Defendants, however, because IPFA did not think it would give
the Defendants enough time to prepare their defense. The IPFA also asked for
the issuance of a new summons and the setting of a new hearing date. The Paris
judge entered an order against the Defendant.
It took an appeal, and applied for it to be set aside on the
ground that they had not been properly served with the document instituting the
proceedings. They claimed in particular that they had not gotten notice of the
mailed document because no member of Defendant’s management had acknowledged
receipt of it as apparently required by California law.
The document instituting the proceedings had clearly failed
to reach its addressee before the date the President of the Paris District
Court had expressly specified as a condition upon his giving leave to summon
the Defendant. Because the said leave had thus lapsed after that date, the
proceedings that followed ceased to have, as of that moment, any legal basis.
The late delivery of the summons (which was concededly
proper in form) amounted to a breach of the principle of Contradictory
Proceedings. That Principle ( principe du contradictoire) apparently requires
that all parties to a French civil action be involved in the proceedings,
having been properly served and given a chance to make their submissions and
their exchanges of evidence.
Applicable in cases like this, the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters [20 U.S.T. 361; T.I.A.S. 6638; 658 U.N.T.S. 163 ; done November 15,
1965; entered into force between France and United States on September 1,
1972]. The Plaintiffs urged that they had complied with the Convention by using
the semi‑direct procedure provided, and by sending the required documents to
the IPFA and by notifying Defendant of the proposed hearing date. In
exceptional circumstances, the Hague Convention provides for the possibility of
a direct communication by post.
The French Court of Appeal rules against the Plaintiffs. “A
judge dealing with interlocutory matters must, as any judge must, respect the
principle of Contradictory Proceedings and make sure it is observed; it must
check that the addressee of a summons making him a party to [French]
proceedings, had knowledge of it in proper time; he must also be satisfied, in
accordance with the provisions of art.486 of the Code of Civil Procedure, that
sufficient time elapsed between the summons and the hearing to allow the
summoned party to prepare [its] defence.”
“In giving leave, on May 10, 2007, to M. X ... and the
limited company X ... to summon MYSPACE in the United States to appear [at the
Paris forum] on a fixed date, at a hearing which was to take place the
following June 15, the President of the Paris District Court only gave that
leave subject to the ‘delivery’ of the summons before May 16, 2007, at 1400
hrs, that condition being explained by the concern to comply with the principle
of Contradictory Proceedings.”
“In accordance with
the provisions of art.653 of the Code of Civil Procedure it follows from the
Decree 2005‑1678 of December 28, 2005, that the notification of a document only
results from its delivery to the addressee.”
“In the present case, it is established that the document
instituting the proceedings was addressed by a bailiff, at the request of the
Plaintiffs, ... on May 15, 2007, to the authority in the United States with
jurisdiction to notify such a document, that authority having acknowledged its
receipt on May 23, 2007; the said authority did not transmit it to MYSPACE, its
only addressee.”
“It is also
established that the said document was addressed, according to the terms of the
sender bailiff’s attached letter, for (its) information, to MYSPACE, by post on
May 15, 2007, that document having been received by its addressee on the
following May 21.”
“... [I]t must be recognised that this document instituting
the proceedings, had not been delivered to its addressee before May 16, 2007 at
1400 hours, [the] condition imposed by the President of the Paris District
Court upon his giving leave to summon.”
“The said leave,
having thus lapsed after May 16, 2007, at 1400 hrs, the proceedings which
followed no longer had, as from that moment, any legal basis; the late delivery
of the summons did not result in it being null as regards its form, but
amounted to a breach of the principle of Contradictory Proceedings. It follows
that the order complained of must be set aside, and a new ruling be given with
a finding that the proceedings had not been properly started, because of the
breach of the principle of Contradictory Proceedings.” [¶¶ 13‑20].
Citation: MYSPACE, Inc. v. X, [2009] I. L. Pr. 21;
2008 WL 5973788 (Cour d’Appel, Paris, 14th Chmbr.) (October 29, 2008).
**** Terik Hashmi is a business consultant serving businesses in the marketing realm. Among his clients are a medical service provider and an Online Reputation Management company. - Attorney Website at: https://terikhashmiattorney.com/ - Attorney Profile at: https://solomonlawguild.com/terik-hashmi%2C-esq# - Attorney News at https://attorneygazette.com/terik-hashmi%2C-consultant#eec97f53-49a0-4c94-869a-4847514cb694