I’ve posted extensively recently on Hasbro v. RJ Softwares, the Scrabulous lawsuit, including a four-part series on PrawfsBlawg and two posts here on the similar litigation in India. See my last post for links to all of those materials, and see this article for background if you’re just tuning in.

In the PrawfsBlawg series, I noted a number of interesting legal issues that might be raised during any litigation or, even better, appeal of the dispute between Hasbro, the owners of the North American rights to Scrabble, and RJ Softwares et al., the makers of Scrabulous. In particular, I noted some surprising weaknesses with Hasbro’s copyright claims, including the blackletter rule that games are not copyrightable, lack of ownership over the Scrabble dictionary, and the apparent lack of registration of the Scrabble letter tiles. Even more troubling, I noted a possible formalities problem with all of the Scrabble copyrights dating back to the original 1948 registrations. On the plus side for Hasbro, I questioned the purpose of the under-theorized blackletter rule, although I ultimately concluded it played an important role in copyright law.

Much as I would like to see these issues play out in court, however, I may not get that chance. On Thursday, Hasbro filed proof of service with the court, showing that the defendants were served on August 13. My guess would be that a motion for a default judgement will be hot on its heels. For civ pro junkies, I’ll go into a few more details after the jump.

Hasbro’s filing indicates that RJ Softwares and the Agarwalla brothers were served in India by an Indian law firm under Rule 4(f)(2). India is evidently not a signatory to the Hague Convention; Rule 4(f)(2)(A) permits service in a non-Hague-Convention country “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction.” The method of service described by the Indian attorneys in the filing looks to me like what we used to call in New York “nail and mail.” That is, a copy of the summons and complaint was affixed by “hanging over the outside of the premises in the presence of some persons,” then another copy was mailed, return receipt requested. The “nailing” occurred August 13; the “mailing” was signed for August 25. The Indian attorneys say that under Indian law, service was complete on August 13, but even if August 25 is the right day, the 20-day deadline for the defendants to respond passed long ago.

(By the way, one of my geekier moments in practice was using Rule 4(f)(2)(C)(ii) to serve a foreign defendant. That’s right; I had the clerk of the court mail the summons and complaint. We even went in with a copy of the rule, to prove that we weren’t just making it up.)

The next step is to request that the clerk enter a default under Rule 55(a) for failure to appear; and then to move for a default judgement under Rule 55(b). Unless the defendants act soon, this case may be over before it even started. However, if as I suspect the Agarwalla brothers are just a couple of programmers operating out of Kolkata, India, they may have decided that foreign litigation with uncertain chances of success just isn’t worth the candle, particularly now that they have an Indian judgement stating that they are not infringing the copyrights in Scrabble. As the French tower guard said in Monty Python and the Holy Grail, “Now go away, before I taunt you a second time!”