Serving Foreign Defendants’ U.S. Counsel to Avoid the Hague Service Convention
April 10, 2025
Plaintiffs are sometimes frustrated trying to serve process on foreign defendants through the Hague Service Convention. Sometimes, they ask federal district courts to authorize service by email as an alternative means. The problem with this, as Maggie Gardner and I have explained in detail, is that that the means of service provided in the Convention are exclusive, and email is not among them.
By its terms, however, the Hague Service Convention applies only “where there is occasion to transmit a judicial or extrajudicial document for service abroad.” The U.S. Supreme Court held in Volkswagenwerk AG v. Schlunk (1988) that, when service on a foreign defendant can be completed in the United States, the Convention does not apply. A recent decision in Zobay v. MTN Group Ltd. by Judge Carol Bagley Amon (Eastern District of New York) allowed plaintiffs to effectuate service on foreign defendants through their U.S. counsel. Because such service begins and ends in the United States, she reasoned, the Convention does not apply.
Service on U.S. counsel will not work in every case. As explained below, because such service is effectuated within the United States, a district court must rely on Federal Rule of Civil Procedure 4(e)(1) rather than Rule 4(f)(3), which means that service on U.S. counsel must be authorized by state law. Moreover, service on U.S. counsel will only work in cases where the foreign defendants have U.S. counsel and the plaintiffs know who it is. But in cases like Zobay, serving U.S. counsel is an alternative—and one that does not violate the Convention.
Attempts to Serve in Zobay
The plaintiffs in Zobay and two companion cases were injured, or had members of their families injured or killed, in terrorist attacks in Afghanistan, Iraq, and Syria. They brought claims under the federal Anti-Terrorism Act (ATA) against foreign telecommunications companies for aiding and abetting international terrorism. MTN Group is a South African company, whereas ZTE and Huawei are Chinese companies.
Plaintiffs attempted to serve the Chinese defendants under the Hague Service Convention through China’s Central Authority. But the request for service of process was denied under Article 13 of the Convention on the ground that it would infringe China’s sovereignty or security. Plaintiffs then asked Magistrate Judge Vera M. Scanlon to authorize service by alternative means.
The Magistrate Judge’s Decision
FRCP 4(f) authorizes service outside the United States. Rule 4(f)(1) provides for service through “internationally agreed means” such as the Hague Service Convention. Rule 4(f)(2) makes other methods available when there is no internationally agreed means. And Rule 4(f)(3) allows the court to order service “by other means not prohibited by international agreement.” Judge Scanlon relied on Rule 4(f)(3). (Both Rule 4(f) and Rule 4(e), discussed below, authorize service on individuals. But both also apply in relevant part to corporations by virtue of Rule 4(h).)
Judge Scanlon first rejected the possibility of service by postal mail under Article 10(a) of the Convention. This was clearly correct because China has objected to service through postal channels, as the Convention allows it to do. (The magistrate judge relied on other court decisions for this information, but the Convention parties’ declarations and reservations are easy to access directly through the Hague Conference website.)
She also rejected the possibility of service by email. This was also correct. As Maggie and I have explained, the means of service listed in the Hague Service Convention are exclusive and email is not one of them. (The Convention was concluded in 1965.) Service by email might be considered service through “postal channels,” but it would still be unavailable for defendants residing in countries that have objected to using postal channels like China. Because email service is “prohibited by international agreement,” it is beyond the authority granted by Rule 4(f)(3). “In any event,” Judge Scanlon concluded, “Plaintiffs have not provided email addresses for which the Court could conclude that service could be achieved consistent with due process.”
Service by publication was not available for similar reasons. Plaintiffs had not identified media outlets that could be used to reach the defendants. The magistrate judge might have added that service by publication suffers from the same infirmity as service by email—it is not among the exclusive means of service listed in the Convention.
This brought Judge Scanlon the possibility of service through U.S. counsel. She noted that courts are divided on whether such service is permissible under Rule 4(f) at all. Rule 4(f) applies only to service “at a place not within any judicial district of the United States.” Some courts have reasoned that a federal court cannot order service on U.S. counsel under Rule 4(f)(3) because such service occurs in the United States. Judge Scanlon, however, sided with the “majority view” that such service is permitted when U.S. counsel acts simply as “a conduit” for service abroad.
Both ZTE and Huawei are represented by counsel in various civil and criminal actions in the United States besides the ATA claims brought by plaintiffs. Judge Scanlon reasoned that service on those lawyers, and the ones who had appeared in the ATA cases, would satisfy the notice requirements of due process because “most reasonable lawyers will inform their clients about the pendency of a lawsuit when notified in this manner.”
But here, again, one runs into problems with the Hague Service Convention. If service through U.S. counsel is really service abroad, then the Convention applies. If the Convention applies, its listed means are exclusive. And transmission of service through counsel is not among the means that the Convention allows. Thus, service through U.S. counsel fails for the same reasons as service by email and service by publication. Because the Hague Convention does not permit it, such service is “prohibited by international agreement” and therefore beyond the power of a district court under Rule 4(f)(3).
The District Court’s Decision
District Judge Amon affirmed on different grounds. Reasoning that service through U.S. counsel occurs in the United States, she looked to Rule 4(e)(1), which provides for service “in a judicial district of the United States by … following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” In other words, a federal court in New York may rely on New York law to serve defendants within the United States.
In New York, personal service on a corporation is addressed in Civil Practice Law and Rules § 311. Subsection (a) authorizes service through officers, directors, and agents. Subsection (b) further provides that, “[i]f service upon a domestic or foreign corporation within … one hundred twenty days … is impracticable … service upon the corporation may be made in such manner … as the court, upon motion without notice, directs.” Judge Amon noted that New York state courts have authorized service on foreign defendants through U.S. counsel under § 311(b) as well as under New York’s corresponding provision for service on individuals § 308(5).
Critically, New York courts consider service on foreign defendants under these provisions to be complete when the papers are delivered to U.S. counsel. Citing the U.S. Supreme Court’s decision in Schlunk, Judge Amon reasoned that service would therefore be made within the United States, rendering the Hague Service Convention inapplicable.
FRCP 4(e) allows a federal court to rely on state law “unless federal law provides otherwise,” and defendants argued that New York law was preempted in this case by the Hague Service Convention, by the ATA, and by the FRCP. But Judge Amon correctly rejected these arguments. The Convention could not preempt New York law in this case because under Schlunk the Convention does not apply. The ATA has a provision on service, but it does not preclude other methods. And FRCP 4(h)(1)(B)’s reference to serving corporations through officers and agents did not displace FRCP 4(h)(1)(A)’s permission to serve according to state law.
Conclusion
This case nicely illustrates the complex interplay among the Hague Service Convention, the Federal Rules of Civil Procedure, and state law. The Convention is exclusive. When the Convention applies, only the means of service that it lists may be used. And because FRCP 4(f)(3) allows federal courts to order alternative means “not prohibited by international agreement,” such courts cannot rely on this provision to order service by email, service by publication, or service through U.S. counsel.
But the Convention does not apply when a foreign defendant can be served within the United States. Service in the United States is governed by Rule 4(e) rather than Rule 4(f), and Rule 4(e)(1) allows federal courts to rely on state law. New York’s CPLR § 311(b) appears to give courts broad discretion to order service by alternative means. New York courts have relied on this provision to authorize service through U.S. counsel. Because New York considers such service complete when the papers are delivered to U.S. counsel, the Convention does not apply.
Of course, the constitutional due process requirement of notice to the defendant still applies. But unlike substituted service on foreign corporations through state officials, which I have noted elsewhere may not provide adequate notice, service on U.S. counsel seems reasonably calculated to inform a foreign corporation of a lawsuit.
To be clear, serving foreign defendants through U.S. counsel may not be available in every state. By virtue of Rule 4(e)(1), a federal court can only order such service if state law permits it. But New York law appears to permit it—and New York is a significant forum for transnational litigation.