Serving by email under the Hague Convention for cases in the US courts

David Zaslowsky

Baker McKenzie, New York

david.zaslowsky@­bakermckenzie.com

Lawrence W Newman

Baker McKenzie, New York

lawrence.newman@bakermckenzie.com

Imagine the defendant in the lawsuit you are about to commence in the federal courts in the United States resides in a country that is a signatory to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention).

In this article, we look at whether you can serve that defendant by email, an issue that has become more relevant this past year in light of the Covid-19 pandemic and the related inability of foreign authorities to effectuate personal service inside their countries under the provisions of the Hague Convention.

The relevant rule for our discussion is Fed. R. Civ. P. 4(f), which authorises service upon individuals in foreign countries:

1. by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorised by the Hague Convention;
2. if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice; or
3. by other means not prohibited by international agreement, as the court orders.

Some defendants have argued that a plaintiff must first attempt service in accordance with the Hague Convention based on the Supreme Court’s statement in Volkswagenwerk Aktiengesellschaft v. Schlunk,[1] that ‘by virtue of the Supremacy Clause, U.S. Const., Art. VI, the Convention pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies’.

However, courts in the Second Circuit (one of the more important courts in the US federal system because it covers New York), as well as elsewhere, do not read Rule 4(f) in that way. Rather, multiple courts have said that there is no hierarchy among the subsections in Rule 4(f).[2] ‘Service of process under Rule 4(f)(3) is neither a last resort nor extraordinary relief.’[3] ​​​​​​​

Accordingly, a majority of the courts in the Second Circuit have held that there is no requirement for a plaintiff to attempt service under the Hague Convention before seeking court permission to serve process under Rule 4(f)(3). As the court said in Merrimack Mut. Ins. Co. v. New Widetech Indus. Co.,[4] ‘a plaintiff is not required to attempt service through the other provisions of Rule 4(f) before the [c]ourt may order service pursuant to Rule 4(f)(3).’

Likewise, in SICAV v. Wang,[5] the court said that ‘under Rule 4(f)(3), a plaintiff is not required to attempt service through the other provisions of Rule 4(f) before the [c]ourt may order service pursuant to Rule 4(f)(3)’ (emphasis in original). However, a minority of courts in the Second Circuit have held to the contrary. In AMTO, LLC v. Bedford Asset Mgmt.,[6] for example, the court said, ‘a party must attempt service in compliance with the [Hague Convention] before petitioning for permission to serve by alternative means.’

Convergen Energy LLC v. Brooks,[7] is a relatively recent decision that addressed this issue. That case included a number of Spanish defendants. The plaintiffs' counsel emailed Spain's Central Authority (the entity that each country designates under the Hague Convention to receive requests for service from abroad), said they were looking to use the Central Authority to effect service under the Hague Convention and asked whether it was accepting requests for service during Covid-19 times. The Central Authority responded that it would not be able to assure processing of the request for the duration of the pandemic. The plaintiffs then moved under Rule 4(f)(3) for permission to serve, inter alia, by email.

The court explained that there is no strict requirement that a plaintiff pursue service through an international agreement before asking for a court's authorisation to order alternative service. However, the moving party must make some showing of the need for judicial intervention, which usually requires:

• a showing that the plaintiff has reasonably attempted to effectuate service on the defendant; and
• a showing that the circumstances are such that the court's intervention is necessary.

The court found that the plaintiffs had made that showing here, given their attempts to serve the Spanish defendants under the Hague Service Convention, the exigencies of Covid-19 and the Central Authority's response.

Yet, even if alternative service is appropriate, plaintiffs must still demonstrate under Rule 4(f)(3) that the proffered alternatives were not prohibited by international agreement and that they comported with constitutional notions of due process. Because the Spanish defendants did not argue that service by email was prohibited by international agreement, the court focused its analysis on whether email service comported with due process. The focus of that analysis is whether plaintiffs can demonstrate that the email was likely to reach the defendant.

Two other recent cases are worthy of discussion because they concerned a request to effect service of process through email in China and Germany, respectively: Mattel, Inc. v. Animefunstore,[8] and Group One Ltd v. GTE GmbH, et al.[9] The significance of these cases is that these two countries (unlike Spain) invoked the reservation in Article 10(a) of the Hague Convention under which they declared their objection to service through postal channels. The defendants in those cases argued that service by email should be considered like service by mail, meaning that the Hague Convention (an international agreement) prohibited service by email in China and Germany. Because one of the Rule 4(f)(3) requirements is that service be by a ‘means not prohibited by international agreement,’ according to the defendants’ argument, service by email cannot be allowed in a country that objected to service under the methods in Article 10(a).

Both courts rejected this argument. In Mattel, the court said: ‘this Court has held that China’s objection to service by postal channels under Article 10 of the Hague Convention does not encompass service by email and that, further, service by email is not prohibited by any international agreement.’ In Group One, the court said: ‘Courts in the Second Circuit have generally found that email is not a postal channel and that service by email is authorized if the signatory country has not explicitly objected to service by electronic means.’ The court referred to numerous decisions which held that service by email was permitted under the Hague Convention, even in countries that had objected to Article 10(a). For example, ShelterZoom Corp. v. Goroshevsky,[10] authorised service by email in Russia, which had objected to Article 10. Gurung v. Malhotra[11] reached the same result for India.

As to the due process prong of the alternative service, both courts made the same point as in Convergen Energy. The due process clause requires that the alternative means of service be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. In Mattel, the district court found that service via email comported with due process requirements where:

• the defendants engaged in online business and regularly communicated with customers through email;
• counsel for the defendants informed the plaintiff by email of his representation and the defendants’ knowledge of the action; and
• counsel for the defendants engaged in settlement discussions and actively participated in the discovery process.

In Group One, email service comported with due process because the defendants communicated directly with the plaintiff’s counsel concerning anticipated or pending patent infringement litigation on prior occasions via email and actually received adequate notice of the litigation via email.

It should also be noted that there are courts outside the Second Circuit that have reached the opposite result. Sales v. Guangdong Chigo Heating & Ventilation Equip. Co.,[12] was a case that also concerned service by email in China. There, the court referred to numerous cases on both sides of the issue of whether the Article 10 reservation includes service by email. It challenged the underlying logic of the cases that said email service is allowed under the Hague Convention, namely that if a country objects to service methods under Article 10, but not explicitly to email service, the latter must be permitted. The court said that this reasoning fails to account for the express terms of Article 10. The purpose of objecting to Article 10 is because, by its clear language, the service methods identified in Article 10 were specifically permitted unless objected to. The same cannot be said of email service. According to the court in Sales, there is no reason for a nation to affirmatively object to a service method that is not authorised or identified because the Hague Convention specifies certain approved methods of service and preempts inconsistent methods of service wherever it applies. It held that, because of the Article 10 reservation, email service was not permitted on a defendant in China.

In terms of other arguments considered by the courts, some have based their decisions on the plain meaning of the treaty. That is, because Article 10(a) does not refer to email, then it should not be included in the reservation. The obvious retort is that, of course the treaty could not have referred to email, seeing that it was signed in 1965. Unlike national statutes (such as the Federal Rules of Civil Procedure), treaties are not regularly amended.

Returning to the question posed at the beginning of this article of whether one can serve process by email on a defendant who resides in a Hague Convention country, the answer is ‘it depends’. Cases go both ways, but the weight of authority of the courts in the Second Circuit is that email service is permitted. Nevertheless, the courts will generally expect that a party demonstrate some need to use Rule 4(f)(3) following other efforts to have made service, rather than using email as the initial method for service. Having said that, in temporary restraining order cases (such as both Mattel and One Group), where there is a need for immediate service of the papers, one can expect that requirement to be relaxed.

Another important factor is demonstrating to the court a very strong likelihood that the chosen email address is one that the defendant will read. Finally, while courts regularly make the point that receipt of served papers does not establish service if the method of service is not proper, as a practical matter, many courts will not ‘unring the bell’ of a defendant who actually responds immediately to the receipt of documents served by email.