All I Want for Christmas (from the Federal Courts)

Photo by Antoné (CC BY 2.0)

Rounding out this week’s posts by John Coyle and Bill Dodge, here’s my wish list for the lower federal courts (plus a bonus plea to the Supreme Court).

Stop Violating Rule 4(f) and the Hague Service Convention

Rule 4(f) of the Federal Rules of Civil Procedure authorizes service of process on defendants “at a place not within any judicial district of the United States.” It specifically permits service pursuant to the Hague Service Convention, which has 84 contracting parties (including the United States). Rule 4(f)(3) also permits service “by other means not prohibited by international agreement, as the court orders.”

District courts routinely invoke Rule 4(f)(3) to permit service by email on defendants in China (a contracting party to the Convention). Here’s the problem: The Hague Service Convention is exclusive, which means it lists the only permissible bases for service when the Convention applies. So, if the Convention applies (i.e., service requires transmitting papers to a defendant located at a known address in the territory of a contracting party), Rule 4(f)(3) cannot be invoked to approve means of service beyond those enumerated by the Convention.

Some district courts have started to correct course, thanks in large part to well-reasoned decisions from the Southern District of New York and the Middle District of Florida, among others. But others are routinely rubberstamping ex parte requests for service by email on defendants in contracting parties (Southern District of Florida and Northern District of Illinois, I’m looking at you). I am hopeful that 2025 will finally bring some appellate clarification to this issue. In the meantime, Bill Dodge and I have a just-published piece on the problem in Judicature, which provides a roadmap for the sometimes complicated interplay between Rule 4 and the Convention.

Hold the Line on Mujica Abstention

I have been arguing for years against a novel form of abstention that would allow federal judges to refuse to hear cases based on loose invocations of sovereign interests. The Ninth Circuit gave the new doctrine its fullest exposition in Mujica v. Airscan Inc. (2014), in which it held that the interests of the Colombian government, backed by the U.S. government, justified dismissing a complaint brought by Colombian plaintiffs against U.S. companies for supporting an admittedly unlawful bombing of the plaintiffs’ community. The doctrine originated in the Eleventh Circuit, which used it to dismiss a Holocaust restitution claim in deference to an established remedial scheme for such claims. But the Eleventh Circuit has since suggested that the Holocaust case was sui generis (and it has not again applied this form of abstention). The Supreme Court managed to duck the question after explicitly granting cert on it a few years ago. Only the Ninth Circuit has continued to use Mujica-style abstention.

This year brought some reassurance that Mujica abstention may remain narrowly cabined. The Third Circuit implicitly reaffirmed its earlier rejection of this form of abstention. And the Eighth Circuit didn’t use it to dismiss a large tort case brought by Peruvian plaintiffs against Missouri-based defendants for lead pollution caused by mining operations in Peru. (Disclosure: Bill Dodge and I submitted an amicus brief in that case.) While the Eighth Circuit did not reject the doctrine outright (as the Third Circuit has previously done), it is in precisely this type of transnational tort case involving U.S. defendants that Mujica abstention could do the most mischief.

Update the Application of Forum Non Conveniens

This request might sound pie-in-the-sky, but it may not be: update the application of the private and public interest factors for forum non conveniens originally laid down in Gulf Oil Corp. v. Gilbert (1947). But as I pointed out a couple years ago (at p. 2318 ff.), federal courts have already been trending in this direction. And new developments in the Fifth Circuit may open another avenue to reform. As I explained last week, the Fifth Circuit has been raising the bar for transferring venue under 28 U.S.C. § 1404, a statute that allows federal district courts to transfer cases to other federal districts. Although Section 1404 has traditionally used Gulf Oil’s framework of private and public interests, it has always been an easier standard to meet because transferring a case to another district in the United States is a less severe result than dismissing the case outright. Much of what the Fifth Circuit has been saying about transfers under Section 1404 can and should be applied to forum non conveniens.

Here are some specific trends I hope to see continue:

• Be extra skeptical of local defendants who ask to have suits against them dismissed from their home forums.
• Don’t second guess plaintiffs’ assessment of their own convenience.
• Require defendants to be specific about what evidence or witnesses will be easier to access in the alternative forum.
• Acknowledge that technology, modern travel, and judicial cooperation (like that enabled by the Hague Evidence Convention) can reduce the burden of cross-border litigation.
• Consider whether the problems identified by the defendant will be resolved or avoided in the alternative forum (or whether the case will be difficult to litigate no matter what the forum).
• Interpret the “localized” controversy factor from Gulf Oil as referring just to a subset of cases: those in which both plaintiffs and defendants are from the same foreign country.
• Recognize that Gulf Oil’s foreign law and choice-of-law factor does not mean that U.S. courts should avoid all foreign law or choice-of-law problems as applying foreign law is a traditional part of the work of the federal courts.

Bonus: Please Don’t Overrule International Shoe

Finally, a plea to the Supreme Court as it takes up Fuld v. PLO: please do not use Fuld to blow up personal jurisdiction. Some lower court judges, and I suspect some Justices, are itching to bring originalism to personal jurisdiction, but I do not think the issue has percolated long enough to justify the havoc it would cause. I worry that the allure of old cases will lead Justices to read those cases anachronistically (and thus draw the wrong conclusions from them). Further, the problems they see with personal jurisdiction doctrine are not the fault of International Shoe itself, but of the doctrinal scaffolding built on top of it. Overturning International Shoe (or further sidelining it) will create significant disruption. And even if a committed originalist believes havoc is a necessary cost, I do not believe that scholars and lower court judges have yet worked out a full and accurate history of personal jurisdiction that could fairly justify such a sweeping change.