Another Thoughtful Decision Limiting Email Service
November 13, 2024
The interplay between Rule 4(f) and the Hague Service Convention (HSC) is intricate and challenging. In a recent order, U.S. Magistrate Judge Diana Song Quiroga of the Southern District of Texas said a lot of smart things about this interplay that bear repeating by other district courts.
Three Cheers
The judge denied a request in PNC Bank National Assoc. v. Baglien for permission to serve a defendant in Canada (who resides at a known address in Alberta) by email and by ordinary mail. Canada is an HSC contracting party and—potentially relevant to this case—has not objected to service by postal channels under Article 10(a) of the Convention. Reading the concise order, I cheered at the following:
1) The judge chided the plaintiff for not even attempting service through Alberta’s Central Authority, “which apparently is quick, inexpensive, and amenable to alternative-service requests.” Further, if the plaintiff wants to pursue “unorthodox” service, it should first ask the Alberta Central Authority for its help under Article 5. In support of this point, the judge cited to Canada’s information on the HSC’s website, which reports that service requests in Alberta are typically completed within four weeks.
2) The judge reasoned that “methods of service uncontemplated by the Convention [are] pre-empted by it” given the structure of the HSC. In other words, the HSC lists the exclusive methods of service; silence in the Convention should be interpreted as a prohibition. The order thus declined to follow other district courts that have (erroneously) held that a country’s lack of objection to email service means that email service is A-OK under the Convention. Rather, the opposite is true: unless a contracting party has affirmatively permitted email service, email service is presumptively prohibited by the HSC. Email service thus cannot be authorized under Rule 4(f)(3), which is limited to “other means [of service] not prohibited by international agreement.”
3) The judge was also clear about the stakes of what might seem to the casual reader like nitpicky distinctions: Correctly interpreting the HSC is a matter of keeping our treaty commitments and showing respect for the sovereign preferences of allies. “The parties to the Hague Convention went to a great deal of trouble to set up a flexible interface for their respective service processes,” the judge wrote. “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.”
Remaining Questions
Having gotten so much right, the judge also touched on questions that I think are less settled and merit further exploration.
First is the growing possibility that Article 10(a) can be interpreted to include service by email within “service by postal channels.” Ted Folkman has reported on recent developments supporting such an interpretation. Because Canada has filed no declaration limiting the applicability of Article 10(a), one could argue that email service to Canadian defendants is permitted under the HSC. (I remain a bit wary of this argument myself, however, pending more explicit embrace by HSC members that currently permit service by postal channels, like Canada, the United Kingdom, and Australia.)
Second is the judge’s thoughtful distinction between different types of service authorized or permitted by the HSC. She suggested that Rule 4(f)(1)’s authorization of service “by any internationally agreed means of service …, such as those authorized by the [HSC]” extends only to service via the receiving state’s Central Authority. This is a reasonable interpretation of Rule 4(f)(1), as service via a Central Authority is the only form of service that is affirmatively authorized by the HSC. (It is the one mandatory channel of service to which contracting parties must agree). But there is also an argument that “internationally agreed means of service” under the HSC extends to other channels of service, like those that Article 10 permits by default (in the absence of an objection).
The judge would instead have applied Rule 4(f)(2) to these alternative channels of service, but I am not sure that the language of Rule 4(f)(2) is a good fit. Rule 4(f)(2) is limited to circumstances when “there is no internationally agreed means, or if an international agreement allows but does not specify other means.” But the HSC arguably does specify other means, like service by postal channels. To the extent that Rule 4(f)(1) is not broad enough to cover alternative channels of service recognized by the HSC, the better fit might be Rule 4(f)(3), which in turn requires court approval. All that said, I think this is a tricky—and still underexplored—question without an obviously “right” answer.
Third is the judge’s consideration of Canada’s internal law for service by mail. She is absolutely right that any ol’ service by mail may not be sufficient, but I admit I have not given much thought to whether the requisite specifications would come from U.S. law or from the law of the receiving state. This question is connected to the prior question: which subdivision of Rule 4(f) is being invoked? Perhaps because the judge considered service by postal channels under Article 10(a) to be implemented through Rule 4(f)(2), which explicitly refers to the internal law of the receiving state, she analyzed the plaintiff’s requested service by mail in light of Alberta’s service requirements. Rule 4(f)(2) also permits, however, “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” Further, if a U.S. court were instead to locate Article 10(a) service by mail under Rule 4(f)(3), the specifications would be set by the judge approving the alternative method of service. If such service were instead authorized under Rule 4(f)(1), that provision still requires the means of service to be “reasonably calculated to give notice.” Whichever route a judge chooses, then, simply dropping a summons in the mail is unlikely to be sufficient.
Conclusion
I greatly appreciate the Southern District of Texas’s careful order and its recognition that the interplay between Rule 4 and the HSC is neither simple nor trivial. The more time I spend myself on these questions, however, the more questions I find to answer.