#hague-service-convention — Public Fediverse posts

Case of the day: Whoop v. Shenzhen Wonlex Technology

The case of the day is Whoop, Inc. v. Shenzhen Wonlex Technology Co. (D. Mass. 2026). As you might guess from the case name, it’s an IP infringement case involving a Chinese defendant. Whoop sought a preliminary injunction. It made an emergency motion for leave to serve the Chinese defendant with process by email before the hearing on the motion for a preliminary injunction.

The longtime Letters Blogatory view, now blessed by the federal appellate courts that have considered the question, is that you cannot serve process by email on a defendant in China whose address is known. The reason is that under the Service Convention, email service is permissible, if at all, only because it qualifies as service by postal channels.1 The Convention permits service by postal channels and certain other alternative methods, but only if the state of destination has not objected. But China has objected to all alternative methods of service. QED.

The judge, without much discussion, agreed with the orthodox view. But Whoop pointed to Article 15 of the Convention, which provides:

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

Okay, but what are the preceding paragraphs? They explain when a court can enter a judgment in cases 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,” or in other words, when a court can enter a default judgment in cases where the Convention applies.

Whoop argued that service of process by email is a “provisional or protective measure” that the court can authorize “in case of urgency.” There are courts that have taken that view. But the judge in today’s case (Judge Saylor, here in Massachusetts) disagreed, holding, correctly in my view, that Article 15 simply means that a court can order measures such as preliminary injunctions or temporary restraining orders, even if the court could not yet enter a default judgment. The purpose of the sentence Whoop relied on is simply to make it clear that there has to be a way for courts to act on applications for emergency relief even if they cannot enter a final judgment unless and until service of process has been effected.

But that doesn’t mean Whoop was barred from seeking a preliminary injunction. It’s true that under the law of the forum, namely FRCP 65(a)(1), a preliminary injunction may issue only “on notice to the adverse party.” There is also, of course, a due process issue here. But notice is not service.

Think twice before wading into this semantic morass. The Convention refers in English to “service,” but in French it refers to “signification” and to “notification.” I am not a civil law expert, but at a high level, signification is the more formal method of notification, executed by a judicial officer, and roughly equivalent to service of process, while notification is a broader term that reaches less formal methods of notifying a party of something.

The judge’s view was that because giving notice of a motion for a preliminary injunction does not require service of process, and because email is adequate notice both under FRCP 65 and under the Due Process Clause, providing notice by email does not violate the Convention. As a practical matter, he has to be right. Otherwise it is hard to see how a US court could issue preliminary injunctions in cases where the defendant is in a state that has objected to service by alternate methods. But I am not so sure that getting to that conclusion is a simple matter under the Convention.

Here is how Article 1 of the Convention, in English, defines the Convention’s scope:

The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.

And here it is in French:

La présente Convention est applicable, en matière civile ou commerciale, dans tous les cas où un acte judiciaire ou extrajudiciaire doit être transmis à l’étranger pour y être signifié ou notifié.

The problem is that “service,” in English, should have the same meaning as “signification ou notification” in French. That is, it should not be limited to formal service of process. I have also written previously about the Convention’s reference to transmission of any “judicial or extrajudicial document” rather than simply to summonses in order to demonstrate that the Convention can’t easily be limited to service of process in the strict sense, as we conceive of it in American law.

I don’t think there can be any real argument that a motion for a preliminary injunction, with the accompanying papers, is a “judicial document,” and that, at the beginning of a case, where a defendant abroad is not (yet) represented by US counsel, there is occasion to transmit the motion to the defendant abroad. So what is a court to do? One possibility is to look to Schlunk v. Volkswagen, 486 U.S. 694 (1988), which suggest that the Convention really is limited in its scope to service of process, though that solution is not persuasive for the reasons I’ve just given. Of course I acknowledge the discussion of the drafting history in Schlunk, but I have to say that it seems to me that the court’s view begs the question, because it seems to say that the use of the word service, or signification or notifcation, rather than delivery (remise), shows that the Convention means to refer to service of process. But the whole point is that signification and notification together apply to many more kinds of documents than just the kinds used to bring a defendant before the court. And that’s true if we consider the English word service without worrying about French. FRCP 4 governs service of the summons and complaint and explains the methods that can be used. FRCP 5 governs service of all other documents in a lawsuit and explains the methods that can be used. So even in a purely American context, focusing on the use of the word “service” doesn’t make the case.

A better view, maybe, is to look at the “notwithstanding” language from Article 15, but in a different light than Whoop or the court considered it. The question shouldn’t be whether service of documents by email is a “provisional or protective measure,” but rather, whether a court’s power to grant provisional or protective measures necessarily implies the power to do the things that are necessary conditions precedent to granting those measures, for example, giving notice of the proceedings to the adverse party via a method that would not ordinarily be permissible under the Convention. I’m not sure that’s perfect, but it seems the most defensible way to get to the necessary conclusion: that even if the plaintiff will ultimately have to serve the defendant via the Chinese central authority, in case of urgency, it can get a preliminary injunction after giving notice in a less formal way.

1. If service by email is not service via the postal channel, then China’s objection isn’t relevant, and the key point becomes the lack of any provision in the Convention that can fairly be read to authorize or permit service by email. ↩︎

Making a Mess of Service of Process

Last Friday, Magistrate Judge Paul Kohler (District of Utah) granted a motion for alternative service of process, allowing…
#Germany #DE #Europe #EU #Europa #HagueServiceConvention #RecentCases #ServicebyEmail #ServiceThroughCounsel
https://www.europesays.com/germany/105606/

Case of the day: Dinwang Jia v. Individuals on Schedule A

The case of the day is Dingwang Jia v. The Individuals, etc., Identified on Schedule A (S.D. Fla. 2026). This is yet another “Schedule A” case, raising what is now the classic issue about service of process by email on a Chinese defendant.

The case is interesting because of the treatment of the Chinese defendant’s address. The Hague Service Convention, remember, simply does not apply if the defendant’s address is unknown, and so the limitations the Convention imposes on service by email also do not apply if the defendant’s address is unknown. The defendant’s address was listed in its Amazon page, which you might think would be the end of the issue. But the plaintiff argued that he hadn’t been able to verify the address using the China Mainland Business Registry, apparently because the Amazon page didn’t give the defendant’s name in Chinese. Anyway, it doesn’t seem that the plaintiff tried to serve process via the Chinese central authority once it decided that the address could not verified.

It seems to me that the plaintiff outsmarted himself here. If the website gives an address, rather than undertaking investigations and making motions for leave to serve by alternate means and then fighting motions challenging the validity of the service, why not just ask the central authority to serve process at the address given? The judge didn’t take this approach though. Instead, she concluded that the plaintiff had not used reasonable diligence to discovery the defendant’s address, and therefore, that the address was not “unknown” for purposes of the Convention. The right result, but a questionable path to it.

Case of the Day: Kangol v. Hangzhou Chuanyue Silk Import & Export Co.

The case of the day is Kangol LLC v. Hangzhou Chuanyue Silk Import & Export Co. (7th Cir. 2026). I covered the case back in October, when I submitted an amicus brief on behalf of friends-of-Letters-Blogatory Bill Dodge and Maggie Gardner. In today’s case, the Seventh Circuit has now joined the Second Circuit in holding that when the Service Convention applies, and when the state of destination has objected to service by postal channels, service by email is impermissible.1 Huzzah! I think it is fair to say that the appellate courts, when given a chance to decide the issue on a real record rather than on an ex parte basis, and with the aid of briefs that were well-done on both sides, are coalescing around the answer that I say is obviously right but that has befuddled many lower courts. I have put it like this in the past:

1. Everyone agrees that the Convention is exclusive, which means that when it applies, you have to use one of the methods of service that it authorizes or at least permits. This is the holding of Volkswagen, and the distinction between authorized and permitted methods is found in Water Splash v. Menon.
2. There is no provision in the Convention that expressly authorizes or permits service by email. If any provision does the trick, it’s Article 10(a), which permits service by postal channels—but only when the state of destination has not objected.
3. Countries like China and India have objected. Since the only possible provision that permits service by email can’t be used, the service is improper under the Convention.
4. A court cannot use FRCP 4(f)(3) to authorize a method of service that is inconsistent with a treaty.

Or more briefly, like this:

Limited methods.
Email is not on the list.
The plaintiff’s sad tears.

The case begins with some questions of waiver and timeliness that are not of much general interest. It considers a couple of ancillary Convention questions that are of some interest. First, the court notes that there was a real issue about whether the Convention applied at all, given that the defendant’s address in China was unknown. It remanded for further proceedings on whether the plaintiff had been sufficiently diligent to make that argument stick. The court also rejected a creative but (in my view) obviously wrong argument that emailing the defendant a link to the documents was not a transmission of the documents themselves. If you haven’t transmitted the documents, then how can you really say you have effected service? After all, the plaintiff did not claim it had served the documents fictitiously or by publication.

But leaving those issues aside, it was gratifying to see a court stick the landing and get the right answer for the right reason. The issue is not free from doubt: the Florida state courts continue to get the issue wrong, and the Florida Supreme Court declined to hear an appeal from a case in which I had indicated the intent to submit an amicus brief for Professor Huo Zhengxin explaining why the Florida rule offends the interests of states that have objected under Article 10. But the trend is very, very good.

1. Leaving aside the academic possibilities of Article 19, etc. ↩︎

Second Circuit Holds Hague Service Convention Prohibits Email Service on Chinese Defendants

On December 18, 2025, just as TLB was going on holiday break, the Second Circuit issued its decision…
#Netherlands #Nederland #NL #Europe #Europa #EU #TheHague #HagueServiceConvention #RecentCases #SecondCircuit #ServicebyEmail #SmartStudy
https://www.europesays.com/netherlands/1379/

Case of the day: Fox Corp. v. Media Deportes Mexico

The case of the day is Fox Corp. v. Media Deportes Mexico S. de R.L. de C.V. (S.D.N.Y. 2026). The case raises a perennial Letters Blogatory question: when the Hague Service Convention applies, can you serve a temporary restraining order or a preliminary injunction on a defendant in a way that you couldn’t serve the summons and complaint? For example, in a foreign state that has objected to service under Article 10 of the Convention, can you serve the TRO or the preliminary injunction by email?

In today’s case, Fox had licensed Media Deportes Mexico to broadcast sporting events in Mexico. It claimed that MDM had breached the license agreement by obtaining an injunction, in a Mexican court, barring Fox from using the Fox Sports trademarks in Mexico. Fox sued in New York, seeking a TRO to restrain MDM from using the Fox Sports trademarks in Mexico or in the US, and from prosecuting its injunction case in the Mexican courts. The court issued the TRO and authorized Fox to serve the TRO electronically, which Fox did. Fox then asked the court to find MDM and related entities, including MSD, in contempt of court for violating the TRO. Eventually, MSD appeared in the New York case and argued that the service of the TRO by electronic means was impermissible under the Convention. In the meanwhile, the Second Circuit decided the Smart Study case, which held that when the Convention applies and when the state of destination has objected to service by alternate means, service by email is impermissible.

The court rejected MSD’s argument. The judge grounded his analysis in part on the last sentence of Article 15 of the Convention. Here is Article 15 (I’ve omitted the second paragraph and bolded the key language):

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

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.

* * *

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

That last sentence is obviously key. But I am not certain that it means what the judge thought. I do not think the sentence means, “In case of urgency, the judge can authorize methods of service that the Convention otherwise would not permit.” Instead, I think it means, “The judge can, consistent with the Convention, order provisional or protective measures, even if there is no evidence that the service on the defendant has been accomplished.” The Convention, in other words, is no bar to issuance of a TRO directed to a defendant where there is no proof of service, even though it may, under Article 15, be a bar to issuance of a default judgment against a defendant in such circumstances.

Still, US law of course requires notice to a defendant subject to a TRO before the defendant can be found in contempt for violating the TRO. The trouble is that a TRO implies that there is a need for emergency relief and thus a need to get notice to the defendant very quickly. How to square that need with the Convention?

It seems to me that the key is in Article 1, which provides that the Convention applies “where there is occasion to transmit a judicial or extrajudicial document for service abroad.” If I want to serve a defendant with a summons and complaint, I can’t just send a letter giving the defendant notice that he had been served, even if I include the summons and complaint with my letter.1 It’s not enough for the defendant to read about the lawsuit in a newspaper. But if I want to make sure a defendant subject to a TRO has notice of the TRO, I think I could simply write him a letter. Or, I suppose, I could put an ad in his local newspaper. What matters, for satisfying due process, is that the defendant has actual notice. So even if I send the TRO, which is undoubtedly a judicial document, by mail, I am not sending it abroad for service. I am just providing notice. That’s the reason why “serving” it (that is, sending it) by email is permissible.

The judge also suggested a reason to distinguish this case from Smart Study. Smart Study, he wrote, involved entry of a default judgment, and this case didn’t. Perhaps the point is that a violation of the Convention really only matters to the defendant when a judgment enters that rests on the violation. But when the Convention applies, it applies, and I think a defendant threatened with contempt of court would disagree with the thrust of the judge’s point. It seems to me that my reading of Article 15 avoids the need to make a point like this.

In short, I think the judge got to the right result, but I think there is a much better and clearer way to get there.

1. Sometimes service by mail is permissible, of course! ↩︎

Section 1783 Case of the Day: Eletson Holdings v. Levona Holdings

The case of the day is Eletson Holdings Inc. v. Levona Holdings Ltd. (S.D.N.Y. 2025). Eletson sought confirmation of an arbitral award. Levona sought to have the award set aside, on the grounds that, according to Levona, documents Eletson had not produced in the arbitration but had produced in a later bankruptcy proceeding showed that Eletson had offered fraudulent testimony in the arbitration. Intervenors in the case sought leave under 28 U.S.C. § 1783 to serve a subpoena on Peter Kanelos, a US citizen or resident who was in Greece, who was a participant in the communications that had been produced in the bankruptcy.

Section 1783 is (at least in my experience) rarely used. The statute provides:

A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner.

The first question I ask lawyers who call me for help obtaining evidence abroad is: is the target a US national or resident?1 Usually the answer is no. Sometimes it is yes, and then we have to consider whether it makes sense to use the statute. The answer is usually “no,” because many US nationals live abroad and do not return to the US regularly. In such cases, the subpoena (which the US court cannot enforce abroad) carries little oomph, and it is not practical or cost-effective to try to monitor the witness’s travel for purposes of bringing contempt proceedings. I say the answer is usually “no.” In fact, I do not think I have ever seen a case where I recommended using the statue. But as today’s case shows, sometimes people try.

The statute has three requirements. First, the witness has to be a US national or resident. Second, the subpoena has to be necessary in the interests of justice (this is traditional language from traditional letters rogatory). Third, there must be no other way to obtain the evidence in a form admissible at trial.2

The judge reviewed the sparse precedent on the statute. “Necessary in the interests of justice,” he wrote, is a squishy analysis that looks at the totality of the circumstances. He held that the evidence was necessary in the interests of justice, for reasons that I am not going to focus on here. The key, though, was whether the intervenors had shown that there was no other way to obtain the evidence. The problem is that Greece is a party to the Evidence Convention. On this point, the intervenors say that pursuing that route would take longer than the case schedule permits. I question whether proceedings under § 1783 would, in practice, lead to obtaining the evidence any quicker. But the intervenors had sought to issue other letters of request under the Convention in the case, which the judge thought undercut their argument. The judge also pointed out that the intervenors had not shown any efforts to obtain Kanelos’s evidence without compulsion, either in Greece or elsewhere. Note that Greece has not objected to the non-compulsory methods of Chapter 2 of the Convention (for our purposes, notably, depositions by a commissioner and consular depositions). To the contrary, Greece has declared, under Article 18, that commissioners etc. can apply for compulsory aid under Greek law.

Let me add one procedural wrinkle about § 1783. The statute requires that the subpoena be served under FRCP 4, and the Service Convention requires that it be served by a method authorized or permitted under the Convention (because the subpoena is a judicial document). Greece does not permit service by alternate means under the Convention, and so even if FRCP 4 permits service by post in the circumstances, the intervenors would have to request that the Greek central authority serve the subpoena. Again, I question whether any of this is faster than making a request under the Evidence Convention.

1. Actually, that’s the second question. The first question is: have you exhausted efforts to obtain the evidence via ordinary US discovery methods? Even when the target is not a party to the litigation, there are many cases in which the evidence is within the control, if not the possession, of a party. For example, the foreign target may be a professional advisor to the party, or may have some commercial relationship in which the party has a right to obtain information from it. It is always a good idea to consider this possibility, even if it means you will not then have the occasion to consult with me! Of course, the foreign law/Aérospatiale issue can arise, in which case you might need my advice after all. ↩︎
2. For my civil law readers: this is mostly a reference to the common law rule against hearsay, which we still use in the United States, though I understand that in England, hearsay is generally admissible in civil cases. Gasp! The idea is that you shouldn’t accept evidence of what someone asserted as the truth unless the person who made the assertion is present in court, so that the jury can judge his or her credibility and so that he or she can be cross-examined. ↩︎

#Greece #HagueEvidenceConvention #HagueServiceConvention #subpoena

Case of the Day: Chanel v. Individuals on Schedule A

The case of the day is Chanel, Inc. v. Individuals, Business Entities and Unincorporated Associations Listed on Schedule A (S.D. Fla. 2025). This is a typical internet luxury good knockoff case. There are a lot of these cases nowadays. It’s usual for the plaintiff to sue a long list of seemingly dodgy foreign people and entities in a single lawsuit, to serve process by alternate means, and to ask for and often receive a preliminary injunction.

Today’s decision is one of the lazier of the genre. The judge authorized service by email and the web on the Schedule A defendants. I don’t really blame judges entirely for lazy decisions in these cases, because they the service issue is generally before the court on an ex parte motion. But some judges have managed to get the issues right, and more judges should look into the relevant law to make sure they are getting this right.

The first thing a judge should ask, when asked for leave to serve process by email or via the web, is: does the Hague Service Convention apply? That depends on whether the defendant’s address is known (and whether the plaintiff has used sufficient diligence to learn the defendant’s address, which is a little squishy), and for a defendant whose address is known, whether it is in a Convention state. Today’s decision is silent on those key questions. Why? Because the judge took the shortcut that many of the older cases, going back to Gurung v. Malhotra, took. She reasoned that the Convention simply doesn’t bar service by email, even in states that have objected to service under Article 10’s provisions on alternate methods of service. I’ve addressed this point many times, including in a haiku, and Bill Dodge and Maggie Gardner have done likewise. Here is the reason in summary:

1. The Convention is exclusive. If it applies, you must serve process using one of the methods of service it authorizes or at least permits.
2. The only provision of the Convention that even arguably permits service of process by email is Article 10(a), which permits service via postal channels when authorized by the law of the forum.
3. In a state that has objected to service by postal channels, the objection also covers service by email in light of point (2).

Here is the haiku:

Limited methods.
Email is not on the list.
The plaintiff’s sad tears.

#Email #HagueServiceConvention

Bill Dodge on Serving US Counsel

Friend of Letters Blogatory Bill Dodge has a good post at the Transnational Litigation Blog about serving process on foreign defendants by serving their US counsel. This is one of the great Letters Blogatory conundrums. I have gone back and forth about the issue. That’s one of the blessings and curses of blogging. You can go back and read my posts about this and see how my thinking changes over time and see how I try to work through the issue. Or you can read posts that say wildly different things and say, “this guy doesn’t know what he’s talking about.”

The basic problem is that most plaintiffs who try this ask the court to authorize service on the US lawyer by way of a motion under FRCP 4(f)(3). That is a smart idea: rule 4(f)(3) allows courts to authorize alternate methods of service as long as they do not violate the Service Convention. By authorizing the service on a US lawyer (who, I assume, is in the United States), the court is authorizing a method of service that does not require transmission of the summons and complaint abroad for service. And so the Convention simply doesn’t apply.1Of course, if the court authorizes the service with the proviso that the US lawyer must forward the summons to his client abroad, then you haven’t really solved the problem …

But there is a textual problem. Rule 4(f) provides that “an individual … may be served at a place not within any judicial district of the United States” by the means described in the rule, including the alternate means allowed under Rule 4(f)(3). We can call this Schrödinger service: the service takes place “at a place not within any judicial district of the United States” in order to allow the plaintiff to use FRCP 4(f)(3), but the service takes place in the United States in order to avoid bringing the Service Convention into play.

Bill’s post covers Zobay v. MTM Group, an EDNY decision from March 2025. The magistrate judge had approved service on a Chinese defendant by service on its US counsel, but she understood that that method was permissible because the lawyer acted as “conduit.” But as I noted in the footnote, treating the lawyer as conduit doesn’t actually solve the problem, because if the lawyer has to transmit the document abroad for the service to be complete, then it is inconsistent with the Convention.

The district judge, affirming the magistrate judge’s decision, tried to solve the problem by looking to FRCP 4(e)(1), which governs service in a judicial district of the United States and which incorporates state law methods of service. Apparently, New York law allows service on a corporation by service on the US lawyer, and it treats the service as complete when the lawyer receives the documents, not when the lawyer transmits the documents to the client.

Bill approves of the decision, and I suppose I do, too. But I think the judge’s discussion gets the due process issue backwards in a way. Due process does not require that a particular piece of paper be put into the defendant’s hand. It requires that the defendant have notice and an opportunity to be heard.2Bill has reminded me, 100% correctly, that actual notice isn’t required. What’s required is service reasonably calculated to provide notice and an opportunity to be heard. If the US lawyer telephones the Chinese defendant and says, “you’ve been sued; here’s what the plaintiff is saying; we have 21 days to answer the complaint,” that would seem to me to suffice for due process purposes, even if the lawyer does not transmit the papers to the defendant. The lawyer is supposed to be a conduit for the information that is important to the defendant, not necessarily the documents themselves. On the other hand, if the lawyer receives the papers but never communicates with the defendant about their contents, then the service may be complete, but there is a problem with actual notice. (Whether that’s a due process problem depends, I guess, on whether you think that the lawyer’s knowledge gets attributed to the client for constitutional purposes, but at least it’s clear that in this scenario there’s no notice to the defendant in fact). So I think it would be better to say that the service is permissible under FRCP 4(f)(3), not because the lawyer has to transmit documents to the defendant, but because the lawyer is going to inform the defendant of the important facts. And if the service is complete on delivery of the summons to the lawyer, then there’s no reason the lawyer can’t send a copy of the summons to the defendant in China, because he is not transmitting it abroad for service: the service was already complete. If this is right, then New York law provides no special benefit not available in any case in federal court.

• 1 Of course, if the court authorizes the service with the proviso that the US lawyer must forward the summons to his client abroad, then you haven’t really solved the problem …
• 2 Bill has reminded me, 100% correctly, that actual notice isn’t required. What’s required is service reasonably calculated to provide notice and an opportunity to be heard.

#China #HagueServiceConvention

Case of the Day: Missouri v. China

During COVID I wrote about what I regarded as an absurd case: the state of Missouri suing China and Chinese government instrumentalities for damages arising from the pandemic. I thought the case was absurd mainly because of foreign sovereign immunity, but also because the service of process on the two arguably non-governmental defendants was bad. But we live in absurd times, and as I reported in an earlier post, after the district court dismissed the action on FSIA grounds, the Eighth Circuit revived one of the claims, a claim that China had hoarded PPE by nationalizing factories that had been producing PPE for US firms, thus violating US antitrust law and Missouri law. On remand, the district court has now granted a default judgment for Missouri for nearly $25 billion in damages. I continue to think this is a case that should never have been brought. And although the case attracted some amicus attention, I think that US judges need to do better, in cases where the foreign state does not appear, to get the law of foreign sovereign immunity right, especially in such a politically fraught, high dollar-value case.

Service of Process

As we know, China and the United States are parties to the Hague Service Convention. The Supreme Court has held that the Convention is mandatory, or in the terms more often used internationally, exclusive. That means that if the Convention applies, then the plaintiff must serve process using one of the methods that the Convention authorizes, or at least permits. The Federal Rules of Civil Procedure reflect this rule. FRCP 4(f)(3) allows the court to authorize alternate methods of service, even if they violate foreign law, but not if they violate the Convention.

Missouri served process on the Chinese Communist Party, the Chinese Academy of Sciences, and the Wuhan Institute of Virology by email, after seeking and receiving permission from the court under FRCP 4(f)(3). Leaving aside the question of whether any of these defendants is an instrumentality of the Chinese state (it is hard to see how the Chinese Communist Party would not be at least an instrumentality of the state),1See my prior post on the case for a discussion of this point. The bottom line is that service by email is not permissible for any defendant that is an alter ego of the state, or an instrumentality of the state.1 China has objected to service by postal channels under Article 10 of the Convention, and service by email is permissible under the Convention, if at all, only if one conceives of email as part of the postal channel. Here is a good explanation of the issue, and you can also find many posts on the topic in this archive. Thus the service of process on these defendants was improper, and the resulting judgment (in my view) void.2Missouri served the Chinese state itself, and several entities that are deemed to be a part of the Chinese state for these purposes, through the diplomatic channel. That seems okay, since the Chinese government refused, under Article 13 of the Convention, to execute the request for service of process, and since China has objected to service by postal channels, making service by mail on the Minister of Foreign Affairs unavailable.

Foreign Sovereign Immunity

Although the district court originally dismissed the complaint in its entirety on FSIA grounds, the Eighth Circuit reversed as to one claim—the claim that China hoarded PPE in the early stages of the pandemic. The gist of the claim is that China nationalized factories that made PPE for American companies. The Eighth Circuit thought that that claim came within the commercial activity exception to foreign sovereign immunity. But that seems absurd to me, since nationalization of property is a quintessentially sovereign act, and it’s hard to think of a better example than nationalization of property in order to marshal resources to respond to a public health emergency. Looking to the nature of the act rather than the purpose, as the commercial activity exception requires, we must note that only governments can nationalize property; it’s not something a commercial enterprise can do.3There is an expropriation exception to FSIA immunity, which I covered in a recent post on Hungary v. Simon. But the claim here wasn’t brought by any American company whose property was allegedly expropriated, and it’s not even clear to me that the American company owned the factories: the allegation, as recounted by the Eighth Circuit, was that China “took over factors that ma[de] masks on behalf of American companies.” So I think the premise of the Eighth Circuit’s decision was plainly wrong.

Reciprocal self interest

When we think about these cases, we have to think about what it would be like if the shoe were on the other foot. In 2021, the US and other western countries were accused of hoarding the COVID vaccine. Should the United States have been amenable to suit in China or elsewhere because it prioritized the public health needs of its own people? The technical term for taking seriously the question, “what if the shoe were on the other foot?” is comity. We need more of it.

• 1 See my prior post on the case for a discussion of this point. The bottom line is that service by email is not permissible for any defendant that is an alter ego of the state, or an instrumentality of the state.1 China has objected to service by postal channels under Article 10 of the Convention, and service by email is permissible under the Convention, if at all, only if one conceives of email as part of the postal channel. Here is a good explanation of the issue, and you can also find many posts on the topic in this archive. Thus the service of process on these defendants was improper, and the resulting judgment (in my view) void.2Missouri served the Chinese state itself, and several entities that are deemed to be a part of the Chinese state for these purposes, through the diplomatic channel. That seems okay, since the Chinese government refused, under Article 13 of the Convention, to execute the request for service of process, and since China has objected to service by postal channels, making service by mail on the Minister of Foreign Affairs unavailable.
• 2
• 3 There is an expropriation exception to FSIA immunity, which I covered in a recent post on Hungary v. Simon. But the claim here wasn’t brought by any American company whose property was allegedly expropriated, and it’s not even clear to me that the American company owned the factories: the allegation, as recounted by the Eighth Circuit, was that China “took over factors that ma[de] masks on behalf of American companies.”

#China #Email #FSIA #HagueServiceConvention

Case of the day: Isaac Industries v. Petroquímica de Venezuela

The case of the day is Isaac Industries, Inc. v. Petroquímica de Venezuela, SA (11th Cir. 2025). Isaac, a Florida wholesale chemical distributor, had a contract with Bariven, a Venezuelan oil and chemical company “associated with or owned by” the state, to sell 2-ethylhexanol for nearly $3,000 per metric ton. Bariven ordered almost 6,000 metric tons of the chemical, and Isaac shipped it, issuing invoices after each shipment. Bavarian did not object to the invoices but also did not pay for the goods. That’s a big unpaid bill.

According to Isaac, after two years, representatives of Petroquímica de Venezuela, another potentially state-owned company, asked for a meeting. At the meeting, Pequiven undertook to pay Bariven’s debt with interest in return for a release of the debt (to become effective after Pequiven made all the required payments). The deal was memorialized in a written contract. Pequiven made the first payment due under the contract but then stopped paying.

Two years later, in 2017, following a disputed election, the United States recognized the 2015 National Assembly as the legitimate government of Venezuela, but the country’s de facto President, Nicolás Maduro, remained in power and effectively in control of the oil companies.

Isaac sued Pequiven, Bariven, and the main Venezuelan state oil company, PDVSA, for breach of contract. It sought to serve process via the central authority per the Hague Service Convention, but the central authority “never confirmed that it executed service.” A year into the lawsuit, Isaac moved for leave to serve process by alternate means. The court granted the motion. At that point, the defendants appeared and moved to dismiss, arguing that they were instrumentalities of the Venezuelan state and that service had to be made under the FSIA. They also argued that the complaint did not allege the case fell within any of the exceptions to foreign sovereign immunity. The court granted the motion to dismiss for insufficient service of process; the order said that the companies could “reassert the remaining bases for dismissal” later.

Rather than try service again, Isaac sought entry of a default judgment due to the lack of any response from the central authority, citing Article 15 of the Convention. Here is how the court described Article 15:

Article 15 permits a judge to enter a default judgment “even if no certificate of service or delivery has been received” so long as a plaintiff “transmitted” the service documents “by one of the methods” described in the Convention, “six months … has elapsed,” and “no certificate of any kind has been received, even though every reasonable effort has been made to obtain it.”

The magistrate judge found that all three conditions had been satisfied. Nevertheless, the magistrate judge (wisely, in my view) recommended denial of the motion for entry of default. No parties objected to the magistrate judge’s report and recommendation. The court adopted the R&R, denying the motion for entry of default, but it also dismissed the complaint on FSIA grounds and ordered Isaac to file an amended complaint that alleged an exception to foreign sovereign immunity. It also “prohibited the oil companies from ‘re-asserting a challenge to service of process.'”

Isaac filed an amended complaint that alleged that the case fell within the commercial activity exception for foreign sovereign immunity. PDVSA moved to dismiss based on immunity grounds, and the court granted. But neither Pequiven nor Bariven squarely denied the allegation that the case arose out of commerical activity in their answers: instead, they “stated that the allegations about the commercial activity exception required no response because they called for a ‘legal conclusion.'” Nor did they raise insufficient service of process as an affirmative defense.

Isaac moved for summary judgment, the court granted the motion, and Pequiven and Bariven appealed. One ground for the appeal was a lack of personal jurisdiction; the oil companies argued that the court had lacked jurisdiction because they had not been properly served. It’s true that the two had challenged service of process in the lower court, but when the magistrate judge found that the requirements of Article 15 had been met, they did not object, and under ordinary procedural principles, a failure to object to a magistrate judge’s decision waives the right to challenge the decision on appeal. So the court affirmed the judgment.

I get it, but I am not 100% sure the decision is right. After all, at the time of the magistrate judge’s recommendation, the court had already held that service of process was insufficient, and that decision came more than a year into the lawsuit (and likely many months if not a year after Isaac had transmitted the papers to the central authority for service). And Isaac didn’t try to effect service of process after that dismissal, but instead looked to Article 15 as a kind of fallback. The magistrate judge didn’t find that service had been proper; he found that judgment could be given despite the lack of evidence that service had been effected. To my mind, there was enough doubt about what were the implications of the magistrate judge’s recommendation that it would have been reasonable for court to review the service question in the interests of justice.

#defaultJudgment #FSIA #HagueServiceConvention #Venezuela

Paper of the Day: Gardner and Dodge on the Email and the Service Convention

Friends of Letters Blogatory Maggie Gardner and Bill Dodge have a great new paper on service by email under the Service Convention . The paper is a very good overview of the topic and very clear about the difference between service that the Convention authorizes and service that it permits and the exclusive or mandatory nature of the Convention. And happily but not surprisingly, it reaches the right conclusion: service by email is permissible, when the Convention applies, only if the state of destination has not objected to service by postal channels;1With a caveat about Articles 11 and 19, which I mention below. and it may not be permissible then, depending on the view you take about whether email comes within the scope of the postal channel. I love flow charts, and this article has one—a helpful reference for judges and lawyers about how to think about the issue.

Bill and Maggie raise an interesting question about whether FRCP 4(f)(1) authorizes service by email when the receiving state has not objected to service by postal channels. This is not really a question just about service by email, but about service by any alternative means of service referenced in Article 10.

My own view is that the Convention authorizes only service via the main channel, i.e., via the central authority. It permits various alternatives, but it does not affirmatively authorize them. I think this is clear (at least in the US) from Water Splash v. Menon, where the Court said:

In short, the traditional tools of treaty interpretation unmistakably demonstrate that Article 10(a) encompasses service by mail. To be clear, this does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not “interfere with … the freedom” to serve documents through postal channels. In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.

The implication is that yes, you do need leave of court to serve process by email under FRCP 4(f)(3). You might wonder why you don’t need leave to serve process via a solicitor in the UK, or via a process server in Canada, since in both cases the service is permissible under Article 10 of the Convention. The answer is that in those cases, the foreign process server is going to serve by a method that the foreign law authorizes in its own domestic actions (FRCP 4(f)(2)(A)) or delivering the papers to the defendant (FRCP 4(f)(2)(C)(i)).

But this raises its own problems. Bill and Maggie take the view that FRCP 4(f)(2) simply doesn’t apply when the Convention applies, since (they say) the Convention is not an agreement that “allows but does not specify other means.” That seems to me not to be right. Article 10 doesn’t actually specify the means of service. It provides for channels of transmission. This is clearest in Articles 10(b) and (c). Article 10(b) provides that documents can be transmitted for service by competent persons in the state of origin to competent persons in the state of destination, without specifying the method of service. Article 10(c) provides that documents can be transmitted for service by an interested person in the state of origin to competent persons in the state of destination, again without specifying the method of service. Article 10(a) provides that documents can be transmitted directly to the defendant through the postal channel without specifying the method of service. (It doesn’t specify whether the service must be by registered mail; it doesn’t specify whether a signature acknowledgment is required; etc.). At least that’s how I see it.2Let me complicate this view by pointing out that the 2024 conclusion and recommendation on this topic, which I covered in a post from July, says that article 10(a) includes transmission and service by email. But I would still want to say it doesn’t specify the method of service (e.g., who may send the email? Must there be proof of delivery? To whom may the email be sent to constitute good service?)

In this sense, Article 10 fits in nicely with the Convention as a whole. Even the main channel of transmission, the central authority, isn’t about specifying methods of service, but rather about specifying the channels through which you can transmit a document abroad for service.3Except for the provision in Article 5 that requires the central authority to serve process by a method specially requested, which I leave to the side as the exception that proves the rule.

Bill and Maggie are careful to note that two other provisions of the Convention, Articles 11 (on bilateral agreements) and 19 (on foreign law expressly providing for receipt of documents coming from abroad for service) could provide a basis for service by email. I am not sure how important either of those is in practice, but more fundamentally, I would note that both refer to methods of transmission of documents for service, not to methods of service. I don’t think I’d noticed that point before, and so I would be hesitant about relying on whatever I’ve written in the past on Article 19.

• 1 With a caveat about Articles 11 and 19, which I mention below.
• 2 Let me complicate this view by pointing out that the 2024 conclusion and recommendation on this topic, which I covered in a post from July, says that article 10(a) includes transmission and service by email. But I would still want to say it doesn’t specify the method of service (e.g., who may send the email? Must there be proof of delivery? To whom may the email be sent to constitute good service?)
• 3 Except for the provision in Article 5 that requires the central authority to serve process by a method specially requested, which I leave to the side as the exception that proves the rule.

#Email #HagueServiceConvention

Case of the Day: ECS Brands v. Brubeck

The case of the day is ECS Brands, Ltd. v. Brubeck (D. Colo. 2024). ECS sought confirmation of an arbitral award against Michael Brubeck, who resided in the Czech Republic. It moved for an order directing the clerk to sign a request for service under the Service Convention.

Under the Convention (art. 3), a request for service must be forwarded by an “authority or judicial officer competent under the law of the State in which the documents originate.” The law of the state of origin determines competence. The US position is liberal:

The persons and entities within the United States competent to transmit service requests abroad pursuant to Article 3 include any court official, any attorney, or any other person or entity authorized by the rules of the court. The United States Central Authority plays no role in service requests involving persons or parties located abroad in private litigation matters and such requests are transmitted by the forwarding authorities in the United States directly to the requested State.

It used to be that some foreign central authorities balked at executing requests for service signed by US lawyers. That’s understandable, because in most states lawyers do not make requests under the Convention. The Special Commission has helped dispel the problem in conclusions and recommendations, for example, C&R 86 of 2024 (“The SC recalled that it is for the law of the requesting State to determine the competence of the forwarding authorities (Art. 3)”) and a similar C&R in 2003. So when I was still handling service matters myself, I would often ask a clerk to sign a request.

Nowadays my sense is that is less necessary or useful, but it is nevertheless surprising to see a court deny a request to have a clerk sign the request, as the court did here. Perhaps (I do not know) the central authority in the Czech Republic has been reluctant to accept requests forwarded by American lawyers?

I suspect the reason for the decision is not so much about the request for the clerk to sign the form, which in my experience anyway typically doesn’t require a motion, but the other odd things ECS requested. It wanted the clerk to provide certified copies of the papers (it’s not necessary to serve certified copies, and in any even you don’t need to make a motion to get certified copies of papers; you just need to ask and pay the fees) and to “correlate” the certified copies with “yet-to-be-provided “certified … translations,” and then to send them abroad via certified mail. This kind of request, which is out of the ordinary and maybe somewhat onerous, is likely to get a judge interested in shielding the clerks.

Counsel who are serving documents abroad and aren’t expert in it ought seriously to consider outsourcing. That’s not a pitch for business. Seriously, don’t call me, I will thank you but refer you elsewhere, most likely to Viking Advocates, who in my view are the real experts on service abroad in practice.

#CzechRepublic #HagueServiceConvention

Case of the Day: Patel v. Pal USA

The case of the day is Patel v. Pal USA, Inc. (D. Nev. 2024). Patel sued Pal USA and its parent, Paltronics Australasia, Pty Ltd., for trademark infringement. Patel served the summons and complaint on Pal USA by mailing them to its registered office. Pal USA’s president and registered agent for service of process, Cooper, was also Paltronics Australasia’s CEO. So when Paltronics Australasia moved to dismiss for insufficient service of process, Patel argued that the service on Pal USA was essentially service on Cooper, which was service on Paltronics Australasia (because you can serve a corporation by serving its officer).

It shouldn’t be surprising that the court rejected the argument. Patel didn’t really serve Cooper but rather served Pal USA by mail. The case might have been closer it Patel had served Pal USA by handing Cooper the documents, but even then, handing the document to an officer in the United States is not one of the methods authorized by FRCP 4(h)(2) and 4(f).1I say the case might be closer because I wonder if there is an argument that the foreign corporation in this situation is served in the United States, and that FRCP 4(h)(1) applies rather than FRCP 4(h)(2). If that is so, then service on the officer is good service.

Patel pointed to Volkwagenwerk AG v. Schlunk and argued that the Supreme Court had approved service on a foreign corporation by service on its US subsidiary. But that’s a misreading of the case, as the judge recognized. The point of Schlunk is not that service on a US subsidiary always works. It’s that if, under state law, service on the subsidiary is sufficient to serve the parent, then the Convention, which is exclusive but non-mandatory (in the HCCH’s preferred lingo) does not preempt state law. Schlunk,remember, reviewed the decision of an Illinois appellate court, not of a federal court. So FRCP 4 didn’t even come into play in the case.

• 1 I say the case might be closer because I wonder if there is an argument that the foreign corporation in this situation is served in the United States, and that FRCP 4(h)(1) applies rather than FRCP 4(h)(2). If that is so, then service on the officer is good service.

#Australia #HagueServiceConvention #ServiceOnSubsidiary

Case of the Day: AXS Group v. Internet Referral Services

The case of the day is AXS Group v. Internet Referral Services (C.D. Cal. 2024). AXS sued Amosa.app, a business that it claimed sold counterfeit AXS tickets online. Discovery revealed that Amosa.app was operated by someone named Altan Tanriverdi, who had an email address, a phone number, and a mailing address in Ankara, Turkey.

AXS sought leave to serve Tanriverdi with process by email, as its investigation had not “provided certainty” about his “present whereabouts.” The court noted the split of authority about how to handle service of email under the Service Convention but concluded that because the Convention does not authorize or permit it (Turkey objects to service by postal channels), and because the Convention is exclusive, the motion had to denied.

That’s all great, except that Tanriverdi’s address was unknown. So under Article 1, the Convention shouldn’t have applied. Perhaps one could make an issue about whether AXS had done enough to show that Tanriverdi’s whereabouts were unknown. In any event, while I appreciate every judge who gets the email question right, sometimes, the easy answer is the best answer. The court probably should not have denied the motion on the grounds it chose.

#Email #HagueServiceConvention #Turkey

Case of the Day: In re Marriage of Paddock and May

The case of the day is Paddock v. May (Wash. Ct. App. 2024). The husband and wife were married in the UK but later moved to Washington. The husband sought a legal separation in Washington, which was granted, and he moved to Wales. The husband’s lawyer withdrew from the case.

Washington law provides that six months after a decree of legal separation, the court, on motion of either party, must enter a decree of dissolution of the marriage. The wife moved for a decree of dissolution and served notice of the motion on the husband by mail. The court entered the decree, and the husband appealed, arguing that the service by mail was imprpoer.

The interesting question for Letters Blogatory readers is whether the Service Convention applied. Ordinarily this issue doesn’t come up, because service of documents in the course of a lawsuit is generally made, under FRCP 5 and state-law equivalents, on the party’s lawyer in the United States. Thus there is no occasion to transmit the document abroad.

But when a party is acting pro se and lives abroad, then service must be made on him, abroad. So the question arises whether the Convention applies. Article 1 provides that the Convention applies “in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” There’s no real question that a divorce case is civil, and there’s no real question that they had to be transmitted abroad. So the Convention applies unless (1) the papers that were served were not “judicial documents,” or (2) the papers were not transmitted “for service abroad.”

The court answered the question straightforwardly with reference to the Supreme Court’s leading case, Volkswagenwerk AG v. Schlunk. There the court said that “service” means “a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action.” But the husband already had notice of the action: he brought the action. Schlunk suggests that the Convention simply doesn’t apply to service of the various documents that go back and forth, typically between lawyers, during the pendency of the action.

That’s the typical American approach, and it has a lot to recommend it practically. Litigation would be impossible if every motion, every discovery request, and every notice had to be transmitted via the Convention, particularly when a pro se party is in a state that has objected to service by alternate means.

But does this make sense of the Convention’s text? After all, the Convention also applies to the transmission of extrajudicial documents, which cannot be service of process in the strict sense.

The good news is that I have been writing Letters Blogatory for almost fourteen years, and so I don’t need to reinvent the wheel to start to figure out a view on this interesting question. Here is an excerpt from my chapter on service in the ABA treatise on international litigation, which I reprinted in a 2017 post:

In addition to the issue of which law governs the question whether there is occasion to transmit a document for service abroad, there is also an issue about whether a particular transmission of a document is a transmission for service abroad. This issue arises rarely, since in the overwhelming majority of cases applying the Hague Service Convention, the documents transmitted are the summons and complaint, and there can be no doubt that in such cases the transmission is for service. But the issue does sometimes arise in the service of process context. For example, in an in personam case within the admiralty or maritime jurisdiction, where a party seeks an attachment (e.g., attachment of a vessel), under Rule B of the Supplemental Rules for Admiralty or Maritime Claims, a default judgment cannot enter unless the plaintiff has served notice of the attachment on the defendant. The requirement of notice is distinct from the requirement of service of process. In Hyundai Merchant Marine Co. v. Grand China Shipping (Hong Kong) Co., the court held that the convention did not apply to transmission of the notice required by Rule B because service of the notice was not service of process in the strict sense. Another example is in the Pennsylvania state courts, where it is possible to commence an action by filing a praecipe for a writ of summons rather than a complaint. A plaintiff who files the praecipe instead of a complaint can serve process by serving the summons alone, without the complaint. One commentator has suggested that when the plaintiff later serves the complaint, the Hague Service Convention does not apply because the service of the complaint is not, under Pennsylvania law, service of process.

This view expressed in Hyundai and in the Pennsylvania commentary stems from a dictum in Volkswagen suggesting that the convention applies only to “service of process in the technical sense”:

The negotiating history supports our view that Article 1 refers to service of process in the technical sense. The committee that prepared the preliminary draft deliberately used a form of the term “notification” (formal notice), instead of the more neutral term “remise” (delivery), when it drafted Article 1. Then, in the course of the debates, the negotiators made the language even more exact. The preliminary draft of Article 1 said that the present Convention shall apply in all cases in which there are grounds to transmit or to give formal notice of a judicial or extrajudicial document in a civil or commercial matter to a person staying abroad. … (“La presente Convention est applicable dans tous les cas ou il y a lieu de transmettre ou de notifier un acte judiciaire ou extrajudiciaire en matiere civile ou commerciale a une personne se trouvant a l’etranger”). … To be more precise, the delegates decided to add a form of the juridical term “signification” (service), which has a narrower meaning than “notification” in some countries, such as France, and the identical meaning in others, such as the United States. The delegates also criticized the language of the preliminary draft because it suggested that the Convention could apply to transmissions abroad that do not culminate in service. The final text of Article 1 eliminates this possibility and applies only to documents transmitted for service abroad. The final report (Rapport Explicatif) confirms that the Convention does not use more general terms, such as delivery or transmission, to define its scope because it applies only when there is both transmission of a document from the requesting state to the receiving state, and service upon the person for whom it is intended.

The view that the convention applies only to service of the summons and complaint and not to service of other documents accords with the view taken by some foreign courts, and several U.S. courts have reached the same conclusion in cases involving temporary restraining orders or preliminary injunctions, where the perceived need for speedy notice has led the courts to conclude that notices of injunctions or motions for entry of an injunction need not be served by a method prescribed by the convention even though they occur at the beginning of a case.

But there are good reasons to question whether Volkswagen should be read to mean that the convention should be construed so strictly. First, the convention applies whenever there is occasion to transmit a judicial or extrajudicial document for service abroad. Extrajudicial documents can be “transmitted for the purpose of service” using the same methods prescribed for transmission of judicial documents. It seems clear that documents involved in service of process, strictly defined, will always be judicial rather than extrajudicial documents. Thus if the convention should be construed as the Hyundai court suggests, then the convention’s reference to transmission of extrajudicial documents has no apparent meaning. Second, in French, Article 1 reads: La présente Convention est applicable, en matière civile ou commerciale, dans tous les cas où un acte judiciaire ou extrajudiciaire doit être transmis à l’étranger pour y être signifié ou notifié. “Signification” refers to service that must be made by personal delivery by a judicial officer or huissier, while “notification” refers to service that can be made by mail or even fax. Under the French Code de Procédure Civile, there are times after the commencement of an action when a document is served by notification (e.g. notification entre avocats). The better rule seems to be that the convention should apply whenever a judicial document has to be transmitted for service abroad, whether or not the document is “process” in the strict sense.

It occurs to me that there might be a way out of the practical problem that this view creates. Maybe the best answer is to limit the scope of the Convention’s exclusivity. We typically say that when the Convention applies, you must use one of the methods it authorizes or at least permits in order to serve the document abroad. But maybe it is better to say that when the Convention applies, and when the document to be served is “process” in the strict sense, the Convention is exclusive. I don’t mean to be suggesting that we import the common law way of thinking about writs etc. into the Convention. But we would be distinguishing between documents issued by the court that do something (allow the court to exercise jurisdiction, e.g., a summons; order someone to do something, e.g., an injunction or a subpoena, an order on a motion to compel discovery) from everyday litigation documents litigants issue to each other that don’t carry the force of a court order (requests for discovery, motions, or in other words, requests to the court for action). This line would not be simple to draw, because there are lots of documents that aren’t formally orders but that carry an “or else” with them. For example, take a request for admissions. You don’t have to respond, but if you don’t, you might be deemed to have admitted the matters in question. But it would solve the otherwise insoluble problem of the pro se litigant abroad.

Photo credit: Stedelijk Museum De Lakenhal (public domain)

#HagueServiceConvention #UK

Case of the Day: SEC v. Bowerman

The case of the day is SEC v. Bowerman (D. Mass. 2024). The SEC brought a securities fraud claim against Bowerman, who lived in the UK. According to the return of service, a “private process server” personally served the papers on Bowerman at an address in England. The SEC moved for entry of default when Bowerman did not answer the complaint.

The judge correctly denied the motion. The Convention is exclusive, which means that when it applies (as it did in this case), you have to make service using one of the methods that the Convention authorizes or at least permits. Article 10(b) and (c) provide for effecting service via competent persons in the state of destination, but the UK’s declaration states that any such requests must pass through the UK central authority and must emanate from “judicial, consular or diplomatic officers of other Contracting States.*” That sounds bad. It suggests that you can’t serve via a private process server even if a private process server is competent under UK law, unless you have the court transmit the request for service.

But notice the asterisk. In a 1980 letter from the Foreign and Commonwealth Office to the Permanent Bureau of the Hague Conference, the UK made the following clarification:

I am happy to confirm that our declaration does not preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in the United Kingdom “directly” through a competent person other than a judicial officer or official, e.g., a solicitor. 

I am not really sure how that is supposed the square with the language of the declaration, but nevertheless, the rule in the UK is that you can use a process server to serve process, as long as a solicitor hires the private process server.

It may be that that’s what the SEC did, and the facts simply weren’t reflected in the return of service. But if not, then the SEC is going to have to start again.

Kudos to Judge Kelly and her law clerks for picking up on this in an ex parte context. More judges need to do this.

#HagueServiceConvention #UK

Case of the Day: PNC Bank v. Baglien

The case of the day is PNC Bank v. Baglien (S.D. Tex. 2024). Friend of Letters Blogatory Maggie Gardner has a good post up about the case at the Transnational Litigation Blog. PNC sought to serve Baglien by process server in Calgary after a “skip trace” found an address for him there, but the effort was unsuccessful. Service by “recorded mail,” which I assume is like certified mail, again unsuccessfully. It then sought leave to serve process by mail and email.

PNC was right to try to serve process by process server in the first instance. Since Canada uses process servers in its domestic lawsuits, since it has not objected to alternate methods of service under Article 10 of the Service Convention, and since FRCP 4(f)(2)(A) authorizes service “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction,” there usually is no need to seek the aid of the central authority.

But what to do when service by process server fails? To cut to the chase, the judge in today’s case denied the motion and suggested PNC should make a request to the Alberta central authority. I’ll get back to her reasoning in a bit. But what do you imagine the central authority will do when it receives such a request? A good guess is that it will put the papers in the hands of a process server for service, and it’s unclear why we should expect that process server to be more successful than the first. PNC could, of course, request service ” by a particular method” under Article 5 of the Convention, and I suppose it could request that the central authority serve process by email or by mail. But that seems like a lot of unnecessary rigmarole. Why is it better for the central authority to have someone send the email than for PNC’s lawyer to send it? There are states where there is an answer to that question: states that have an objection to service of process in their territories by foreign litigants or officials. But those are the states that have made declarations under Article 10. Canada isn’t one of them.

Like Maggie, I think the judge deserves a hand for really focusing on Letters Blogatory issues that judges often don’t bother to engage with. But I don’t think the opinion should be cited or relied on. Here is the heart of the judge’s reasoning:

If Albertan defendants could be served notice of U.S. cases by ordinary or electronic mail, no plaintiff “would ever choose” to serve them through the central authority, in person, or by mail requiring a signature, Anova Applied Elecs., 334 F.R.D. at 472, and much of their assurance of receiving “actual and timely notice of suit” would evaporate. Schlunk, 486 U.S. at 698. In Alberta, therefore, service by ordinary or electronic mail, at least where not otherwise authorized or excepted, is inconsistent with and prohibited by the Hague Convention.

Leaving aside whether the first bit of the premise is true (whether no one would choose service via the central authority if service by mail or email is available), the second bit is clearly wrong. It just isn’t true that service by mail or email doesn’t give defendants “actual and timely notice of suit.” Well, sometimes it might be true. But if it is true, then it’s hard to understand why FRCP 4(f)(2)(C)(ii) exists,1The rule authorizes service by certified mail sent by the clerk. or why it would be okay for the Alberta central authority to serve process by mail or email but not okay for the plaintiff’s lawyers to do it. Also, the conclusion doesn’t follow. The best way to see this is to look at Article 10(a) of the Convention, which plainly does permit service by ordinary mail, and which may permit service by email, if you think that email is within the scope of the term “postal channels.”

The judge went on to say, “The Court need not decide whether it could, consistent with the Convention, order substitutional service by these methods under Albertan law, as the Court is not persuaded to apply that law’s discretionary substitutional-service provision here.” The reference to Alberta law is a reference to a Rule 11.28 of Alberta Rules of Court, which allows courts to make an order for substitutional service. I do think the judge had plenty of discretion to deny the motion and to require at least an attempt at service via the central authority. Some courts take the view that you should try the central authority first. But there’s no reason why the judge should think that it was necessary to decide whether the methods of service she’s asked to authorize are consistent with Alberta law. The question under FRCP 4(f)(3) is whether the service is consistent with the Convention; alternate methods of service can violate foreign local law.

Finally, the judge thought that comity compelled denial of the motion:

The parties to the Hague Convention went to a great deal of trouble to set up a flexible interface for their respective service processes. See Schlunk, 486 U.S. at 698. If clever end runs are to make this achievement irrelevant, this Court will be the last to join in them. Comity with our northern neighbor impels a higher deference to the Convention’s intended function. See Water Splash, 581 U.S. at 280 (citing id. at 700).

The problem with this is the same as the problem we identified earlier. The Convention is there to help parties effect service, not to hinder them. Comity does come into play in those states that object to alternate methods of service, but there is no reason to think that comity to a foreign state requires American courts to refrain from methods of service that are 100% okay with the foreign state.

Image credit: sweetviscape (CC BY)

• 1 The rule authorizes service by certified mail sent by the clerk.

#Alberta #Canada #Email #HagueServiceConvention #serviceByMail

Case of the Day: Zobay v. MTN Group Ltd.

The case of the day is Zobay v. MTN Group Ltd. (E.D.N.Y. 2024). The claim is that the defendants, including ZTE and Huawei, conspired with foreign terrorist organizations “targeting Americans in Iraq, Afghanistan, the Middle East, and Europe.” The plaintiffs brought claims under the Anti-Terrorism Act on behalf of people “killed or wounded while serving [the United States] in Iraq between 2011 and 2017 or in Afghanistan in 2019.” ZTE and Huawei are both Chinese companies. The plaintiffs first tried to serve process via the main channel under the Service Convention by sending a request for service to the Chinese central authority. But after a long silence, the central authority finally informed the plaintiffs that it would not serve the documents on the grounds that service of the documents would infringe on China’s sovereignty or security. The plaintiffs therefore asked the court to authorize service on the defendants’ US counsel under FRCP 4(f)(3).

There are lots of cases authorizing service of process by service on the foreign defendant’s US lawyer. But there is a puzzle in the rule that very few cases grapple with:

FRCP 4(f)(3) is part of Rule 4(f), which applies when service “at a place not within any judicial district of the United States.” If you say that service by email on the US attorney for the foreign defendant is okay because it does not require transmission of the document abroad, how can you also say that the service can be authorized by FRCP 4(f)(3), which applies only to service “at a place not within any judicial district of the United States?”

Well, to her credit, Magistrate Judge Vera M. Scanlon went there. She cites several recent cases rejecting service on the grounds that the service on a US lawyer is not service “at a place not within any judicial district,” as the rule requires. But she notes recent cases taking the other view. The rationale of those recent decisions applies only ‘where U.S. counsel is a conduit to the service that is effectuated at a place not within any jurisdiction of the United States.” The judge agreed with the latter view and authorized the service.

I think the outcome is the right outcome, but mostly because “the life of the law has not been logic: it has been experience.” I don’t think there is a great doctrinal reason why the service should be permitted, but there are a lot of cases approving it over many years, and there is a need for a method of service that really does provide notice to defendants when other, more traditional means of service don’t work.

The judge addressed another favorite Letters Blogatory issue. In a pure dictum, the judge asked about whether she could authorize service of process on the defendants in China. She observed that recent cases have split on the issue, but she punted on it, pointing out that the plaintiff hadn’t provided email addresses for the defendants.

#China #Email #HagueServiceConvention

The case of the day is Park Lane IBS LLC v. Unbnd Group Pty. Ltd. (S.D.N.Y. 2024). In a FINRA arbitration, the tribunal issued an award that granted some relief to Park Lane but denied its claim for indemnification and for attorney’s fees. Park Lane moved to set aside the award to the extent it denied that relief, but it otherwise sought to confirm the award. Unbnd, an Australian firm, argued that the award should be confirmed in its entirety, and it opposed Park Lane’s motion to set part of the award aside. The motion to set aside was filed in the New York Supreme Court, but Unbnd removed the case on diversity grounds. (Why not under Chapter 2 of the FFA, as Unbnd was foreign and, it seems, the case fell under the New York Convention?)

Unbnd argued that the motion to set aside had to be denied because it was not served on Unbnd within three months, as required by the FAA. Park Lane had sought to serve notice under New York law before removal, and so the propriety of the notice had to be judged under state law, even after removal.

Park Lane had served the papers by serving them on the New York Secretary of State, since state law permits that method of service on foreign corporation. The law also requires that the documents be served via registered mail. Here, Park Lane did both things and received the signature acknowledging delivery within the three months. Australia had not objected to service by postal channels under Article 10 of the Service Convention, so all of this was entirely correct. The only somewhat surprising bit is that the signature acknowledgement for international registered mail should have come back within the time. Registered mail, in my experience, can be very slow.

https://lettersblogatory.com/2024/09/20/case-of-the-day-park-lane-ibs-v-unbnd-group/

#arbitration #Australia #HagueServiceConvention #serviceByMail

The case of the day is Diamond Films Netherlands Cooperatief v. TV Azteca S.A.B. de C.V. (N.Y. Sup. Ct. 2024). Diamond sued TV Azteca in New York to enforce a Renegotiation and Free Television Output Agreement between the parties. Its lawyers sent a letter of request to the Mexican central authority (under the Hague Service Convention, rather than a letter rogatory under the Inter-American Convention). The central authority passed the documents to a Mexican court, which arranged to have the documents delivered to TV Azteca’s domicile in accordance with Mexican law.

TV Azteca challenged the service in the Mexican court, but the court declined to rule on the challenge and instead sent a certificate to the New York court under Article 6 of the Convention indicating that service had been effected. The New York court, in reliance on the certificate, entered a default judgment against TV Azteca (which, it seems, had appeared in the New York case). It noted that the Mexican court had approved the service by issuing the certificate and that TV Azteca’s efforts to challenge the service via an amparo proceeding had failed. But a few months later, a higher Mexican court reversed and decided that the constitutional challenge to the service should have granted and the service annulled. I would not presume to judge the decision of a Mexican court on a question of Mexican law, but I will say that the decision, which is an exhibit to an affidavit in the case, is highly formalistic in a style familiar from past encounters with Latin American decisions under the Convention.

The question was: did the New York court have to vacate the default judgment in light of the later Mexican decision annulling the service?

The New York judge’s decision was not a model to follow. She wrote: “As between the [Mexican courts’] subsequent reversal and the Hague Convention, this court is compelled to extend comity to the Hague Convention.” This makes no sense. A state gives comity to another state, not to a treaty. And doing what the treaty requires is showing comity to Mexico.

The judge also wrote: “Disregard of the original valid certificate is the
equivalent of disregarding the Hague Convention. It would create confusion and open the door to questioning valid certificates of service of process in the future. Instead, the Hague Convention envisions finality.” Well, the Article 6 certificate is presumptively accurate, but I do not think it is conclusively accurate. It is not really good practice for a state to annul service after it has sent the Article 6 certificate. But if that should happen, is it right to follow the certificate even when it’s clear that the courts in the receiving state have held that the service was invalid? I am not at all sure.

What is most odd about the case is that the contract had a provision allowing for service on TV Azteca by serving someone in California, and Diamond had also effected service in that way. That was an easy and correct path to upholding the default judgment.

Image credit: Eduardo Burciaga (CC BY-SA 4.0)

https://lettersblogatory.com/2024/09/08/case-of-the-day-diamond-films-netherlands-v-tv-azteca/

#HagueServiceConvention #Mexico

Last week we looked at the first sentence of paragraph 105 of the Conclusions and Recommendations of the 2024 Special Commission on the practical operation of the Service, Evidence, and Access to Justice Conventions. That sentence clarified that email is within the postal channel, and that therefore, service by email is permitted when authorized by the law of the forum and when the state of destination has not objected.

Today, let’s look at the remainder of paragraph 105, which reads as follows:

The SC reiterated that service by e-mail under Article 10(a) must meet the requirements established under Article 1 of the Convention, in particular that the addressee’s physical address in the State of destination is known. The SC noted that e-mail domains are not sufficient for locating the person to be served under Article 10(a).

The first sentence might puzzle American readers. Under FRCP 4(f)(3), the court can authorize service by alternate means such as email, even if that method of service violates the local law of the state of destination, but not if it violates the Convention. In practice, this means that if a foreign state has objected to service by postal channels and the Convention applies, a US court cannot authorize service by email, because the Convention is exclusive: it forbids what it does not expressly permit. Thus in US practice, if the Convention does not apply, a court is free to authorize service by email. So what is the point of asserting that you can only serve by email under Article 10(a) if the addressee’s address is known and the Convention applies?

I believe there are two things going on. The first is that in some states, the law of the forum may not permit service that violates the law of the state of destination. In those states, the C&R is saying that the rule I discussed in the last post, namely, that service by email is permitted in a state that hasn’t objected to service by email in the way the Convention prescribes, only applies when the Convention itself applies.

The second is that the C&R is talking explicitly about physical addresses, and it makes clear that it is the defendant’s physical address in the state of destination that determines whether the Convention applies. The C&R also notes, rightly, that the TLD of the recipient’s email address (the “.com” in google.com) is not enough to establish the recipient’s location. For one thing, TLDs like .com or .org are not national. For another thing, for the most part, I can get a domain name with a national TLD like .uk or .us or whatever, regardless of my residence.

Why the focus on physical addresses? At the Special Commission meeting, a delegate raised the following question: a plaintiff in state A sues a resident of state B in the courts of A and serves process by email. The defendant happens to be in state C when he receives and reads the email. What happens then? Whose objections to service by postal channels should apply? One answer is that this is not a new problem. Many traditional postal services offer forwarding service and even international forwarding services. The fact that the problem has gone unnoticed for a long time is a partial answer. It shows that the problem isn’t a reason to reject service by email any more than mail forwarding was a reason to reject service by post. A better answer is that the EU has already solved the problem in its recast Service Regulation, which is closely modeled on the Service Convention, and that looks to the state of the recipient’s domicile or habitual residence to decide where we should treat the electronic service as having been effected. Now, I took a look at the recast Service Regulation, and it doesn’t seem to say that explicitly. Nevertheless, that’s what I heard knowledgeable people say. Perhaps a knowledgeable European reader can expand on this point.

I think, therefore, that the C&R should be read to emphasize that when the physical address of the recipient is unknown, the Convention does not apply, and that when the physical address is known and service is by postal channels, the recipient should be deemed to be served at the place of residence or domicile, even if the recipient happens to be elsewhere when he receives the email.

I want to call to your attention one wonderful thing about the delegate’s question. The question of whether to look to the law of the defendant’s domicile or residence rather than the law of the place where the defendant happens to be when the e-mail is received is a fine question. But it never occurred to the delegate to ask questions that focus on the deeper problems of territoriality that email raises—problems about servers, protocols, and what actually happens “behind the scenes” when I send or receive an email. That is good news, because it shows that today we simply accept the metaphor of e-mail as mail, which is the main reason why the HCCH’s functional approach makes sense and why now is the right time to say that e-mail is part of the postal channel for Article 10 purposes. Readers may be interested to look back seven years to my comments at the Law’s Porosities conference, which dealt with the “e-mail is mail” metaphor in detail and suggested that the metaphor might justify a move towards treating email as part of the postal channel under Article 10. I was a lot more doubtful then than now about whether taking the step the Special Commission has taken was justified. But the favorable reaction of the civil law states at the Special Commission meeting has given me confidence that the conclusions and recommendations are on the right path.

Image credit: Ted Folkman

https://lettersblogatory.com/2024/07/22/the-special-commission-on-service-by-email-part-two/

#HagueServiceConvention

The Special Commission on the practical operation of the Service, Evidence, and Access to Justice Conventions has just completed its 2024 meeting and, at last, taken on the issue of service by email under the Hague Service Convention. Its conclusions are welcome and should have a significant influence on US courts’ decisions, which in recent years have been frequent, and frequently wrong.

I have been documenting these decisions at Letters Blogatory since the blog’s beginning in 2011, starting with the grandfather of erroneous cases on service by email, Gurung v. Malhotra (SDNY 2011), and continuing with more recent decisions that have started to get the question right, for example, Smart Study Co. v. Acuteye-US (SDNY 2022). I have also attended two meetings of the Special Commission as a participating observer. In 2014, the Special Commission let the issue lie. This year, the Special Commission finally addressed it and adopted conclusions and recommendations that—if properly understood—should help American courts get the question right.

What is a Special Commission, and why should you take its conclusions and recommendations seriously? Special Commissions are working meetings of experts that prepare draft Conventions and that “study all questions of private international law which come within the purposes of the Conference,” that is, the Hague Conference on Private International Law. See Statute of the HCCH, art. 8. The members of each Special Commission are officials from the member states of the HCCH and of non-member states that are parties to the conventions being discussed. The United States delegation was made up of officials from the State Department and the Justice Department. Observers like me from accredited groups can also attend and speak, but not vote.

The 1964 Special Commission prepared the text of the modern Hague Service Convention, and Special Commissions have met several times since, beginning in 1977 and most recently in 2009 and 2014, to discuss the practical operation of the Convention. So the reports of the Special Commissions’ proceedings, including the reports or conclusions and recommendations that they issue at the end of each meeting studying the practical operations of the Convention, are a very good source for understanding what the states that agreed to the Convention, including the United States, think it means.

Here is the first part of the Special Commission’s 2024 conclusions and recommendations on service by email:

105.     The SC noted that Article 10(a) includes transmission and service by e-mail, insofar as such method is provided by the law of the State of origin and permitted under the law of the State of destination.

There is more to this C&R, but this is the heart of it. This is not a simple sentence, and it’s made more difficult by the specialized and laconic language that you get used to if you read a lot of stuff published by the HCCH. A friend who has worked at the HCCH calls it “Hague-speak.” The meaning of this one sentence will not be immediately obvious to many American judges or lawyers. Let’s dig in.

“Article 10(a) includes transmission and service by email …” This phrase is the key to understanding the C&R. The Service Convention has a main channel of transmission, in which a competent authority in the forum state transmits the summons and complaint to the central authority of the state addressed, which then arranges for service on the defendant. But it also permits, without affirmatively authorizing, service by a few alternate means. These alternate means are found in Article 10 of the convention. Article 10(a) reads:

Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.

So what are “postal channels?” Everyone agrees that the US mail is part of the postal channel. But for many years, the Special Commission and the HCCH have made it clear that postal channels are not limited to the postal service itself. When the Convention was adopted in 1965, an authoritative report submitted to the Special Commission recognized that telegrams are part of the postal channel. In 2003, the Special Commission considered that private couriers such as Fedex or UPS are part of the postal channel because of their functional similarity with the mail. And the 2006 edition of the HCCH’s Practical Handbook on the Operation of the Service Convention stated that telegrams and telexes are also part of the postal channel, though that reference was dropped in later editions, no doubt due to these technologies’ obsolescence. But the key point is that “postal channels” should be understood functionally, and not formally. Private couriers, telegrams, and so forth work like the mail, and so the Convention treats them like the mail. Email is functionally like the mail, too, and so the same conclusion should apply.

Why is it important to say that email falls within Article 10(a) and thus within the scope of the postal channel? Because many US decisions reason, wrongly, that a state’s objection to service under Article 10(a) only constitutes an objection to service by email if the objection expressly mentions email. No provision of the Convention expressly authorizes or permits service by email (hardly a surprise, given that the Convention is nearly sixty years old), and so to these courts, service by email is generally permissible. But this reasoning fails to respect the exclusive nature of the Convention. Because the Convention is exclusive, you have to find a provision of the Convention that authorizes or at least permits a method of service you want to use, and the only basis for allowing service by email when the Convention applies is likening service by email to service by postal channels. By stating expressly that email is part of the post channel, the Special Commission has made this point even clearer and has also made it clear that an objection to service by postal channels is, ipso facto, an objection to service by email.

“… insofar as such method is provided by the law of the State of origin …” This part is easy. Everyone understands that the Convention does not authorize service by postal channels. It permits it, but only if the law of the forum authorizes it. In US federal courts, that means getting leave of court under FRCP 4(f)(3) to serve by email.

“… and permitted under the law of the State of destination.” This part is hard. It is the part of the C&R that US courts are most likely to misunderstand. Unlike the United States, many foreign states object to anyone except their own officials serving process in their territories. Why? Because unlike the United States, they regard service of process as a sovereign act that only a government official can do. And so ever since the first international convention on civil procedure, adopted at the first session of the Hague Conference in 1894 and signed in 1896, states have allowed the possibility of service by postal channels, but only when the law of the state of destination permits it (“la faculté prévue n’existe, que si les lois des Êtats intéressés … l’admettent”).

The 1896 Convention didn’t explain how the court in the sending state should know whether service by postal channels is forbidden by the law of the state of destination. The member states of the Hague Conference quickly moved to solve this problem. In the 1905 Convention on Civil Procedure, they provided that service by post was permitted unless the state of destination objected to or opposed service by post (“la faculté prévue n’existe que si … l’Etat sur le territoire duquel la signification doit être faite ne s’y oppose pas”). So the burden was on the state of destination to object or oppose rather than on lawyers and judges in the forum state to figure out what the foreign law permitted.

This provision allowing for service by postal channels unless the state of destination objects to it is the progenitor of today’s Article 10(a). (The French version shows the continuity with the older, French-only conventions: “La présente Convention ne fait pas obstacle, sauf si l’Etat de destination déclare s’y opposer à la faculté d’adresser directement, par la voie de la poste, des actes judiciaires aux personnes se trouvant à l’étranger”).1 The French, but not the English, version of the modern 1965 Convention improves on the 1905 Convention by making it clear that the state of destination must not only object but must declare its objection. And the modern Convention also explains how a state declares its objection: by informing the Ministry of Foreign Affairs of the Netherlands. These days, you can find a state’s objections to service by alternate means on the HCCH website.

So when we read that service by email must be “permitted under the law of the State of destination,” we should not conclude that US judges and lawyers need to exert themselves to figure out the law of the state of destination. Instead, considering the purpose and history of Article 10, they should simply look to the declarations the state of destination has made to see whether the state has objected to service by postal channels. Easy. Under Article 21 of the Convention, states are free to modify their declarations under Article 10 whenever they like. States that have already objected to service by postal channels and don’t want to permit email service need take no action. States that have not objected to service by postal channels but that wish to object to service by email may do so. States that have objected to service by postal channels but that wish to permit service by email, if there are any, may modify their declarations to suit their positions.

In summary, the C&R tells us that service by email is permissible under the Convention only when (1) it is authorized by the law of the forum, and (2) the state of destination has not objected to service by postal channels in the manner for objections spelled out in the Convention. When a state has objected to service by postal channels generally or to service by email specifically, and when the Convention applies, service by email is forbidden under the Convention and therefore forbidden under US law.

Because service by email has been a controversial topic in US courts for many years, I was surprised by the lack of controversy over the issue within the Special Commission. My sense was that there was a broad, or maybe universal, consensus on the basic question of email’s place within the scope of the postal channel. That is not to say that no points require further discussion. For instance: how do you deal with a person resident in State A who receives and reads an email while visiting State B? The conclusions and recommendations address that question, but I will save that discussion for a future post.

This is cross-posted at the Transnational Litigation Blog, with a few very minor changes. Thanks to Bill Dodge and Maggie Gardner for the helpful comments!

Image credit: Ted Folkman

https://lettersblogatory.com/2024/07/18/the-special-commission-on-service-by-email-part-1/

#Email #HagueServiceConvention

The case of the day is Peanuts Worldwide LLC v. Partnerships and Unincorporated Associations Identified on Schedule A (N.D. Ill. 2024). The case is a so-called “Schedule A” case brought by an intellectual property owner against many unknown parties allegedly infringing the IP on the web. Here, the plaintiff owned the copyrights and trademarks covering Charlie Brown, Snoopy, and the rest of the Peanuts. One of the defendants was “Electrician Guy.” The plaintiff sought and receive to serve process on it by email, even though (apparently) the physical address of “Electrician Guy” in China was known.

After the court entered a default judgment, and somewhat surprisingly, Electrician Guy appeared and moved to set aside the judgment on the grounds that the service was void. The question was whether service by email in China was valid. The court recognized the cases holding that service by email is improper, though it did not give the best reason for that outcome. The best reason is that the Convention is exclusive under Volkswagenwerk v. Schlunk. Suppose you think that China’s objection under Article 10(a) is not enough because objections to service by postal channels do not extend to service by email. Fine. What provision of the Convention does authorize or permit service by email? None. I made a haiku out of this once.

Limited methods.
Email is not on the list.
The plaintiff’s sad tears.

We should have some more guidance from the Special Commission of the Hague Conference on Private International Law on the Operation of the Service, Evidence, and Access to Justice Conventions about how to interpret the scope of Article 10 declarations, so watch this space.

A second interesting question in the case was the timeliness of the motion to set aside the judgment, which came nine weeks after the judgment. To my surprise, the court held that that was too late for a motion under FRCP 60(b)(1), which governs motions based on “mistake, inadvertence, surprise, or excusable neglect.” It cited cases finding even four weeks too late! Fortunately for the defendant, the Court also considered the motion under FRCP 60(b)(4), which governs claims that the judgment is void, even though that rule had arguably been waived. And the motion was clearly timely under that heading.

Finally, it’s unfortunate that the court held that arguments under Articles 15 and 16 of the Convention, which address default judgmnets, were waived by their omission in the main brief. Of course, to raise an Article 15 or 16 argument, you have to appear in the court that entered the judgment, and in cases like this, defendants often don’t want to do that.

Image credit: Otterbein University Theatre & Dance (CC BY-SA)

https://lettersblogatory.com/2024/07/04/case-of-the-day-peanuts-worldwide-v-schedule-a/

#China #Email #HagueServiceConvention

The Special Commission on the practical operation of the 1965 Service, 1970 Evidence and 1980 Access to Justice Conventions will take place from July 2 to 5 in The Hague. I’ll be attending as part of the ITechLaw delegation, along with friend of Letters Blogatory Alex Blumrosen of the Paris bar. The Special Commission is an opportunity for the states that are parties to the Conventions to trade notes on practical issues that have arisen in the operation of the Conventions. The meeting will result in new Conclusions and Recommendations that, one hopes, courts, counsel, and central authorities can use to work towards a shared understanding of what the Convention provides and towards practical solutions to improve the system of cross-border judicial assistance for everyone.

A lot has happened since the last meeting of the Special Commission in 2014. COVID happened, and today we live in a world where many evidentiary hearings and depositions take place via video. In the Evidence Convention context, this opens up a lot of space for more efficient practice, but it also opens up a lot of space for legal issues (e.g., if you are taking a deposition by video, do the rules about obtaining foreign government permission in advance change?) and for experimentation. Of course we had email long before 2014, but with the ever-increasing use of digital means of communications, questions about the use of electronic methods of transmission under the Service Convention, both between authorities and between an authority and the ultimate recipient of judicial documents, has been litigated in many contexts. There are many other interesting points that I am sure will be discussed.

And then there are the perennial problems, which probably will be discussed but which will almost certainly not be resolved. These include the problem of certain states refusing to execute requests emanating from certain other states, the reluctance of some states to apply specially requested procedures in the taking of evidence when there is no real bar, and the problem of speed, the time from receipt of a letter of request to execution.

The meeting will, I’m sure, be interesting and informative. I will not be reporting live on the discussions (I learnt my lesson about that in 2014!), but I will post some thoughts after the meeting concludes, and I will make sure to point you to the Conclusions and Recommendations once they are published. If there are issues or questions that are of particular interest to you, please let me know in the comments!

https://lettersblogatory.com/2024/06/16/the-upcoming-special-commission-meeting/

#HagueEvidenceConvention #HagueServiceConvention

The case of the day is Footprint International LLC v. Footprint Asia, Ltd. (D. Ariz. 2024). Footprint International was an Arizona company that made fiber-based bowls, plates, and cutlery. It had a contract with Footprint Asia, a Chinese company, to manufacture its products in China. Footprint International brought a trademark infringement claim against Footprint Asia and sought a preliminary injunction. It served process by email, with the court’s permission.

The interesting question was whether the court could grant the preliminary injunction even if the service by email was improper under the Service Convention. I’ve written about this issue before. Rule 65 requires notice, but not service of process, before an injunction can be enforced. But I don’t think that’s a complete answer to the question. It may be that an injunction doesn’t have to be served in the same manner as process is served. But if you have to give notice to someone in a Service Convention state, must you give notice in a way that the Convention authorizes or permits?

The Convention says it applies in all cases where there is occasion to transmit a judicial document abroad for service. There is no question that an injunction is a judicial document. And there is no question that it has to be transmitted abroad. But is it transmitted abroad for service? T he US cases seem to say no, that the Convention only applies to the transmission of judicial documents abroad in connection with service of process.

I find that plausible and maybe, from a practical perspective, necessary. But I also find it hard to square with the text of the Convention, which applies to the transmission of judicial and extrajudicial documents. Extrajudicial documents, according to the HCCH Practical Handbook, include “notarial documents, demand for payment, notices to quit in connection with leaseholds or contracts of employment, protests with respect to bills of exchange and promissory notes, provided that they are issued by an authority or huissier, notice of dates of mediation hearings, notices served by creditors upon debtors, testamentary documents, notifications to beneficiaries of a deceased estate,” and others. None of these are “process,” so how can we possibly read the Convention to apply to the transmission of judicial documents only when for formal service?

The bottom line is that despite these concerns, the cases are clear that an injunction does not need to be transmitted by a method authorized or permitted by the Convention.

https://lettersblogatory.com/2024/04/30/case-of-the-day-footprint-international-v-footprint-asia/

#China #Email #HagueServiceConvention

The case of the day is Voltage Pictures LLC v. Gussi S.A. de C.V. (9th Cir. 2024). Voltage was an LA film production company. Gussi was a Mexican film distributor. The two companies had an agreement for the distribution of Ava in Latin America. Who is Ava, you ask? She is played by Jessica Chastain. According to IMDB, “Lethally beautiful and incredibly efficient in her dangerous line of work, Ava, a taciturn lone wolf and cold-blooded assassin, is starting to develop a conscience.” The contract had an agreement to arbitrate under the IFTA Rules. The arbitration clause also provided: “The Parties agree to accept service of process in accordance with the IFTA Rules.” Those rules provide:

Service of any petition, summons or other process necessary to obtain confirmation of the Arbitrator’s award may be accomplished by any procedure authorized by applicable law, Treaty or Convention, except that the parties waive application of the Hague Convention for Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters with respect to service of process.

They also provide:

The Arbitrator shall apply the laws of the State of California to all arbitrations conducted under these Rules unless the parties by mutual agreement or by the contract to be enforced provide that the Arbitrator shall apply the law of one other jurisdiction, or the Arbitrator for good cause designates another location to be the situs of the arbitration in which case the Arbitrator shall have the discretion to apply for good cause the law of the situs of the arbitration.

When a dispute arose, the parties held an arbitration, with its seat in Los Angeles, by Zoom. The arbitrator issued an award favor of Voltage.

Voltage sought confirmation in the federal court in LA. It mailed its motion to confirm the award to the lawyers who had represented Gussi in the arbitration and filed the motion with the court. Why was this a motion rather than a complaint? Section 6 of the FAA says that “any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.” On the other hand, Section 9 of the FAA says:

Notice of the application [to confirm an arbitral award] shall be served upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice of motion in an action in the same court. If the adverse party shall be a nonresident, then the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court.

We’ll come back to this.

Gussi moved to quash service and to dismiss the motion to confirm the award. The court granted the motion to quash on the grounds that Voltage had not served process on Gussi in accordance with California law. Voltage then mailed the motion papers to Gussi’s address in Mexico, with a return receipt requested. Gussi moved to quash the service again, on the grounds that federal law, not California law, governed service of process and that the service had not complied with federal law. This time, the court denied the motion. The court confirmed the award, and Gussi appealed.

The Ninth Circuit began by noting, correctly, that federal law, not state law, governs service of process in all actions in federal court, because service of process is procedural. A choice of law agreement does not affect the law governing service of process. The court pointed out, again correctly, that parties can by contract waive service of process, but in addition to citing National Equipment Rental v. Szukhent, 375 U.S. 311 (1964), it also cited the Changzhou Sinotype case, to my dismay. What, then, to make of the provision in the IFTA rules that says that service can be effected by “any procedure authorized by applicable law.” What is the “applicable law” here? The court, rightly, rejected Voltage’s view that the “applicable law” was California law.

Having cleared the decks, the court turned to the real question: did the service meet the standard of federal law? The court began by observing that the FAA’s language about the role of the marshal in service of nonresident defendants does not apply when the nonresident defendant has to be served abroad.1 But if the FAA itself doesn’t say how the papers are to be served, how should they be served?

The court held that FRCP 5, the rule on serving motions, and not FRCP 4, the rule on service of process, governs. This is contrary to the rule in the Second Circuit, which I had thought was simply the rule that all or nearly all courts adopted. FRCP 5 allows for service of a motion by serving the other party’s lawyers by mail. The court held that the service on the lawyers was sufficient. In a footnote, the court held that there was no Hague Service Convention issue because Gussi conceded that it had “waived application of the … Convention.”

This seems like an obvious mistake to me for a few reasons. First, Rule 5 applies to service on lawyers who have appeared in the proceeding. Before a party is represented by a lawyer in an action, service under FRCP 5 is made on the party itself. Here is Moore’s Federal Practice § 5.03: “Appearing with or through an attorney designates that attorney as the agent to whom all such service and notice must be given. Prior to any appearance by counsel, however, service is to be made directly on the party.” So even if FRCP 5 applies, it can’t be that the first document in the case, before any lawyer has appeared, can be served on the lawyer. Anyway, it’s not clear whether Gussi was represented by American lawyers or Mexican lawyers in the arbitration. If the lawyers were not admitted to practice in the federal court in Los Angeles, that is yet one more reason why the court’s conclusion makes little sense. Second, the FAA makes it clear that the papers are to be served on the opposing party “in like manner as other process of the court.” A summons is “process.” A motion is not “process.” So the statute itself makes it clear that FRCP 4, the rule on service of process, must apply.

Even if the method of service were governed by Rule 5 instead of by Rule 4, it is wrong to say that the Convention could have no application because Gussi had waived it.2 If the Convention does apply, and if the documents were served by mail in Mexico, then the service was in my view no good, because of Mexico’s objection to service by postal channels.

Longtime readers will know what I think about this. The Convention is an agreement between states, and its provisions are not for the parties to waive, or at least. The law is that when the Convention applies, and when you have to transmit a document abroad for service, you must use one of the methods of service that the Convention authorizes or at least permits. That’s because states that are party to the Convention object to certain forms of service being attempted in their territory without their permission. So it should not be in the power of the parties to a litigation to waive the limitations of the Convention, which are there to protect the interests of the state, not the interests of the litigant.

With that said, the case does raise an interesting possibility, though neither the court nor, apparently, the parties picked up on it. Suppose the documents had been mailed to the lawyers in Mexico, or suppose that Voltage had relied on the service by mail to Voltage in Mexico rather than on the service on the lawyers. Leaving waiver aside, would there still be an argument that the Convention shouldn’t apply?

Maybe, but I think not. The law of the forum determines whether there is occasion to transmit a document abroad for service. The problem here is like the problem in the SinoType case, although not quite so bad. There, the document served abroad by mail was an ordinary summons in a civil action, even though the case was for confirmation of an arbitral award. The problem, or one problem in a case with a few, was that the California courts decided to call the delivery of the summons to the defendant by mail something other than “service of process” so as to avoid the Convention, which in the US is often construed to be limited to service of process. Here, it doesn’t seem that Voltage used a summons at all. Still, the delivery of the documents was necessary to bring Gussi before the court and to give it notice and and opportunity to defend. The result of a proceeding to confirm an arbitral award is an ordinary judgment for damages. If the papers were not served, any judgment that resulted would be void. And there is textual reason in the FAA itself to think that the documents that must be served are process documents, and not just motion papers. So I do not see that it makes much sense to call the papers used to start the case something other than “process.” If I am right, then Gussi should have won, for two reasons: (1) a party cannot waive the Convention’s rules on what service is permissible; and (2) the Convention did not permit service by mail in Mexico.

Unfortunately for Gussi, it didn’t just waive the Convention in the contract but also in its submissions to the court. That kind of procedural waiver is effective, and so I don’t see that Gussi has much chance at further review on the issue of waiving the Convention. But the circuit split created by the holding that FRCP 5, rather than FRCP 4, governs the method of service might interest the Supreme Court if Gussi files a cert. petition.

Image Credit: Greg Skidmore (CC BY-SA)

https://lettersblogatory.com/2024/03/09/case-of-the-day-voltage-pictures-v-gussi-2/

#arbitration #HagueServiceConvention #Mexico #serviceByMail

Judge in the WDPA denies motion for service by email on a Chinese defendant, where the plaintiff knows the defendant's address and has not adequately shown an urgency:

https://www.scribd.com/document/705209698/D-Squared-v-Guangdong-Bixing-Trading-Alt-service-WDPA

This isn't a #ScheduleA case but the discussion of China & the Hague Service Convention are relevant to those cases.

#CivProMatters #PatentFedi #ServiceByEmail #HagueServiceConvention

The case of the day is Regal Games, LLC v. SellerX Eight GmbH (S.D.N.Y. 2024). Regal had a contract with SellerX, a German Company, for the sale of its Chalk City line of sidewalk chalk. Regal brought a claim for breach of contract. It asked SellerX to waive service under FRCP 4(d), but SellerX refused. and served process on SellerX in Germany via the Hague Service Convention. SellerX moved to compel arbitration.

The court granted the motion to compel arbitration, but that wasn’t the end of the case. Regal sought an award of the fees incurred in serving process, arguing that SellerX should have waived service and allowed it to save the nearly $5,000 it spent in service.

Rule 4(d) provides that defendants—even defendants who are subject to service outside the United States—have a “duty to avoid unnecessary expenses of serving the summons.” The rule also requires the court to impose the expenses of service on a defendant who “fails, without good cause,” to waive service upon request, but only if the defendant is “located within the United States.” So it seems pretty clear from the text of the rule that cost-shifting, which is an exception to the ordinary American Rule, should only happen when a domestic defendant fails to waive service.

Regal pointed out that the rule, which does impose a duty to waive on foreign defendant and which does require imposition of costs on domestic defendants, doesn’t actually say that costs can’t be imposed on foreign defendants. Full marks for creativity. But the cases are pretty clear on this point: you can only impose costs on recalcitrant domestic defendants. And that’s what the judge concluded here.

I think the rule the court followed here is not just a consequence of the text of FRCP 4(d) but an important point about comity. We may think of service of process as just about notice and not give it much mind. But it much of the rest of the world it’s the exercise of judicial sovereignty. And sending a piece of paper abroad that imposes a legal consequence if ignored seems to cross the line between merely making a request and haling someone into court.

Photo credit: FranHogan (CC BY-SA)

https://lettersblogatory.com/2024/02/05/case-of-the-day-regal-games-v-sellerx-eight/

#Germany #HagueServiceConvention

The case of the day is In re Aperture Imaging Industries Co. (Fed. Cir. 2024). Rotolight sued Aperture for patent infringement in the Eastern District of Texas. Aperture is based in China. Rotolight sought leave under Texas Rule of Civil Procedure 106(b) to serve Aperture by email served on its counsel.

The court authorized the service over Aperture’s objections, and Aperture sought review of the order by writ of mandamus. To prevail, it had to show that its right to relief was “clear and indisputable.” It argued that Rotolight should have had to try service under the Hague Service Convention first, citing FRCP 4(f)(2) and 4(h)(2).

The Federal Circuit correctly denied the petition. Even if FRCP 4(f) and 4(h)(2) applied,1 it’s well established that a plaintiff doesn’t have to try the other methods of service in FRCP 4(f) before resorting to a motion for alternative service under FRCP 4(f)(3). That’s easy.

But there’s a more intriguing point. Alternate service on a foreign party’s US counsel, though pretty common, is doctrinally shaky. The citation to Texas civil procedure really helps to illustrate why the practice is shaky. If the service is service abroad, then FRCP 4(e)(1), which incorporates state law methods of service, simply doesn’t apply, because FRCP 4(e) applies only to service within the United States. But most of the cases that authorize service on a company abroad by serving the US lawyer point to FRCP 4(f)(3), which, like all of Rule 4(f), applies only to service made outside the United States.

The court noted that the lower court had apparently decided that the service could be made in the United States, and thus Rule 4(f) didn’t apply at all. This raises the question, which the court, perhaps unsurprisingly given the posture of the case, doesn’t really get into: when you serve process on a foreign company by delivering the summons and complaint to someone in the United States, are you serving process in the United States, or in the foreign country?

We know from Volkswagen that, at least as far as the United States is concerned, when you deliver a summons and complaint to a US subsidiary of a foreign company, there is no “occasion to transmit” the documents abroad for service. This seems clearly correct. First, the Convention (art. 1) speaks of an occasion to transmit a document abroad for service (doit être transmis à l’étranger pour y être signifié ou notifié). The transmission is not the same as the service; the transmission is for the purpose of allowing the service to happen. Second, the policies that underlie the limitations on just letting American cowboys fire off summonses to China or Germany or wherever have to do with the foreign states’ assertion that serving process in their territory without their permission infringes their judicial sovereignty; but delivering papers to a US lawyer of subsidiary can’t really raise those concerns.

But what about the service? Here are the possibilities, I think.

• The service is effected outside of the United States, and that is why it’s proper to seek leave to serve under FRCP 4(f)(3).
• The service is effected inside the United States, but the cases that cite FRCP 4(f)(3) are correctly decided, because the limitation in FRCP 4(f) to service outside the United States is referring to where the mystical effect of the service is felt, not where the documents are delivered. The delivery of documents in the United States has some sort of “spooky action at a distance.” It’s not clear in this case whether service under a method permitted by state law works.
• The service is effected inside the United States, and so the cases that cite are FRCP 4(f)(3) are wrongly decided, and Rotolight was right to cite a state law method of service.

Image credit: Håkan Bergknut (CC BY-SA)

https://lettersblogatory.com/2024/01/28/case-of-the-day-in-re-aperture-imaging-industries/

#China #Email #HagueServiceConvention

Case of the Day: Baikowitz v. Jacobson

Happy new year!

The case of the day is Baikowitz v. Jacobson (N.Y. Sup. Ct. 2023). Baikowitz, the curator of his father’s property, sued Jacobson in Montreal seeking to recover $750,000, which he said his father had invested in several of Jacobson’s projects, on the grounds that his father had been mentally impaired when he made the investments. He received a default judgment in the Québec court and sought recognition and enforcement in New York. Jacobson moved to dismiss, arguing that the Québec court had lacked personal jurisdiction.

According to the return of service, a process server delivered the papers to an unnamed person at Jacobson’s place of business in New York, who stated that he was authorized to accept service on Jacobson’s behalf. The court rejected the service and refused to recognize the judgment.

The court began somewhat dubiously by stating that “In the United States, the methods prescribed for service on an individual under the Hague Convention are set forth in rule 4(e)(1) and (2) of the Federal Rules of Civil Procedure.” The main reason I say this is dubious is that the first question courts should ask when someone challenges a foreign court’s personal jurisdiction is: does the case meet the requirements of Section 5 of the UFCMJRA (or in this case, the New York equivalent, CPLR § 5305, which provides that a court cannot refuse recognition on personal jurisdiction grounds if process in the foreign case was served using one of the methods the Act mentions (for instance, personal service in the foreign state, or domicile in the foreign state). If, as in this case, none of those methods applies, the second question is: should the court exercise its discretion under the Act to recognize the judgment on the basis of personal jurisdiction acquired in another way? And nothing in that section of the Act suggests that the courts shouldn’t recognize a judgment unless the service complies with a particular rule of civil procedure.

I’ll give you an example. Suppose (as seems to be the case, according to the decision) that New York allows service by leaving the papers at a defendant’s place of work, but only if the papers are then sent by mail, but Québec law allows such service without requiring mailing. The Québec court obviously thought the service was sufficient. As long as the recognizing court thinks the requirements of due process have been met—a question the court didn’t reach—why should service that met the foreign court’s requirements not be okay?

There is a real point here that the court maybe was getting at. The Service Convention is exclusive, which means that when you have a lawsuit in Canada and the defendant is in the United States, you have to serve the Canadian papers on the defendant via a method that the Convention authorizes or at least permits. That’s presumably why the court focused on the question of which methods of service the Convention permits when a plaintiff in a foreign action serves process in the United States. But the relevant provisions of the Convention, Article 10(b) and (c), don’t specify any particular method of service. They merely say that the process can be transmitted by a competent person or an interested person in the state of origin to a competent person in the state of destination, who then can serve the documents. That clearly happened here, because the private process server who served the papers in New York is a competent person under US law. Contrast Article 5, the provision governing transmission via the central authority. Article 5 also doesn’t specify any particular method of service; it says that once the papers are transmitted, the central authority has to arrange for the service to be effected in accordance with the law of the state of destination, or else in accordance with a special method requested by the applicant. There is nothing like that in Article 10. So while I haven’t studied the New York cases on the question, I don’t think there is a real basis for saying that only service that complies with FRCP 4(e)(1) or (2) can satisfy the requirements of Article 10 of the Convention.

Of course, the court is within its rights to say that the service wasn’t clear or persuasive enough to satisfy it. But if it reaches that answer, it should be because the courts had real concerns about whether the defendant had notice and an opportunity to defend, not because the service failed technically to comply with the Federal Rules of Civil Procedure.

Image credit: Marco Verch (CC BY)

#Canada #HagueServiceConvention

The case of the day is Doe v. Federal Republic of Germany (S.D.N.Y. 2023). It’s a weird one. A pseudonymous plaintiff, who claimed he was the person who leaked the Panama Papers, sued the German government for breach of contract, alleging that the government had breached a promise to pay him a portion of the back taxes collected as a result of the leak. He sued first in Washington. When the court there refused to allow him to proceed using a pseudonym, he dismissed the action and brought a new case in New York, acting pro se. He asked the court to required the Marshal to sign and transmit the request for service under the Service Convention. (Of course, there’s no question that service via the Convention is the proper way to serve Germany in the case, assuming there is no special arrangement for service).

The court denied the motion. It reasoned, correctly, that the plaintiff, a pro se litigant, was not a competent person under US law to sign the request for service. But it went on to hold that the court had no obligation to assist, because, under the court’s handbook of guidance to litigants in foreign service cases, it’s the litigant’s responsibility to transmit a request of service abroad.

I am not a fan of this holding for a few reasons. First, even assuming it’s right that the plaintiff should have to send the request to the German central authority through the mail, the court recognized that he cannot sign it, and it would be simple just to have the clerk’s office sign the form, especially given that the plaintiffs was acting pro se. Second, under FRCP 4(c)(3), the court may (though it need not) appoint the Marshal or someone else as a special process server. It would have been reasonable for the court to construe the motion as one to appoint the Marshal as process server. And in any case, the clerk’s guidance on mailing in cases of foreign service cannot override a rule of civil procedure.

Of course, there’s a bigger question about why the plaintiff should be allowed to proceed under a pseudonym. I don’t know what the justification is, though I could take some guesses based on the unhappiness the Panama Papers leak caused to many wealthy people around the world. And there’s a question about why the plaintiff doesn’t just hire a lawyer!

Photo credit: Nordiske Mediedager (CC BY-SA)

https://lettersblogatory.com/2023/12/04/case-of-the-day-doe-v-germany/

#Germany #HagueServiceConvention

The case of the day is Turco v. Lovisoni (Cal. Super. Ct. 2023). The plaintiff served process on the defendant in Italy via a private process server, or as the defendant described him, a “random individual.” The defendant moved to quash the service.

The details of the discussion were not ideal. The defendant cited a couple of cases that, in turn, cited the guidance of the State Department, which indicated (correctly) that service under Articles 10(b) or (c) of the Convention could be effected only by a judicial officer. The plaintiff cited the HCCH status table, which indicated (again, of course, correctly) that Italy has no objection to the methods of service permitted by Articles 10(b) and (c). Then the court discussed who had or had not provided a sufficient basis to allow it to take judicial notice of the materials cited. It favored the defendant’s position, apparently because a few courts had relied on the State Department guidance. That’s the right approach, but the court seems to have reached it by accident.

A better approach to all this would be for the court to make a real decision about what the Italian legal position really is. The plaintiff did the right thing by citing the State Department’s guidance, but it would have been more helpful to the court, I think, to cite Italian authorities on who are “judicial officers, officials or other competent persons” who can serve process. The defendants evidently didn’t really understand Article 10, and it would have been better for the court to explain why the defendants’ approach was wrong instead of focusing on the lack of a sufficient to take judicial notice of the HCCH’s materials.

https://lettersblogatory.com/2023/10/17/case-of-the-day-turco-v-lovisoni/

#HagueServiceConvention #Italy