District Court Holds that Serving Chinese Defendants by Email is Prohibited

 

 

 

 

My posts on TLB often criticize judicial opinions. Today, for a change, I’d like to celebrate a district court decision addressing the thorny question of email service under the Hague Service Convention that gets the answer exactly right. In Flying Heliball, LLC v. Zero Zero Robotics, Inc., Judge Fred W. Slaughter (Central District of California) correctly held that the Convention prohibits service by email on defendants in the People’s Republic of China because the means of service set out in the Convention are exclusive and email is not one of them.

As Judge Slaughter noted in his decision, district courts in the Ninth Circuit are split on whether the Convention permits email service. The same is true nationwide. And the question has largely evaded appellate review. In a recent article in Judicature, Maggie Gardner and I run through all the nuances of this question. But Judge Slaughter got the answer right without any help from us.

The Hague Service Convention

The Hague Service Convention is a treaty to which the United States and 83 other countries are parties. It serves the dual purposes of facilitating service of process through the specific means it permits and of protecting sovereignty by prohibiting service by other means. Unlike the United States, many countries consider service to be a governmental act that the parties to a lawsuit cannot lawfully undertake themselves.

Under the Convention, each country designates a “Central Authority” to receive and execute requests for service from other countries. The Convention also allows other specific means of service to which the receiving country has not objected or has affirmative agreed. Article 8 permits service through diplomatic and consular agents if the receiving country has not objected. Article 10 permit service through various other means, including through “postal channels,” if the receiving country has not objected. Article 11 allows countries to enter separate agreements authorizing additional means of service. And Article 19 allows the receiving country to consent unilaterally to other means through its domestic law.

Of course, service on a party outside the United States must also be authorized by U.S. domestic law, which in federal court means Rule 4(f). Oversimplifying a bit, Rule 4(f)(1) authorizes service through the Hague Service Convention. Rule 4(f)(2) authorizes other specific means when the Hague Service Convention does not apply. And Rule 4(f)(3) allows a district court to order service by any means “not prohibited by international agreement.”

The Hague Service Convention does not mention email. (It was concluded in 1965.) The question that has divided courts in the United States is whether, in light of this silence, service by email is “prohibited by international agreement.”

Judge Slaughter’s Decision

Judge Slaughter’s answer was “yes.” “To start,” he wrote, “the text and structure of the Hague Convention suggest it enumerates the exclusive methods for serving defendants located in signatory countries.” The Supreme Court has held that, when the Convention applies, compliance with it is “mandatory” and that it “pre-empts inconsistent methods of service.” “Service by email does not fall within one of the Hague Convention’s ‘approved methods of service,’” Judge Slaughter continued, “and China has not affirmatively agreed to this method of service. Therefore, the Hague Convention preempts service by email in China unless an exception applies.”

In fact, Judge Slaughter’s conclusion finds even more support in the Supreme Court’s decisions. In Volkswagenwerk AG v. Schlunk (1988), the Court said not just that the Hague Service Convention is “mandatory” but also that it is “exclusive.” The Court’s later decision in Water Splash, Inc. v. Menon (2017) began its interpretation of the Convention by looking to its “text and structure.” Here, it is particularly significant that all the means of service permitted by the Convention require the consent of the receiving state. To treat silence as permission, and thus to permit service by means that state have not affirmatively agreed to, would subvert this fundamental structural aspect of the Convention.

Water Splash also looked to “the Convention’s drafting history, the views of the Executive, and the views of other signatories” as guides to its interpretation. Bruno Ristau’s authoritative account of the drafting history (on which the Water Splash Court relied) states that “[t]he drafting group considered at length” the question of whether “the means of service provided by the Convention constituted the exclusive means of service of judicial documents in the territories of the contracting states” and that “certain revisions were made to make it clear that the Convention machinery must be employed in all cases where service of process abroad is sought.” The U.S. Justice Department has similarly taken the position that “parties cannot agree or stipulate to a method of service that the Convention neither authorizes nor permits.” And, as Maggie and I detail in our Judicature article, Special Commissions of the Hague Conference, with broad representation from other parties to the Service Convention, have repeatedly confirmed the Convention’s “exclusive character.”

When Is Service by Email Permitted?

There are nonetheless some situations in which service by email is “not prohibited by international agreement” and is therefore available by court order under Rule 4(f)(3). First, a court may order service by email if the receiving country has not joined the Hague Service Convention. If one wished to serve defendants in the United Arab Emirates, for example, a federal court could order email service under Rule 4(f)(3) because the UAE is not a party to the Convention.

Second, by its terms, the Convention does “not apply where the address of the person to be served with the document is not known.” Courts in the United States typically require plaintiffs to exercise “reasonable diligence” to find the defendant’s physical address before concluding that the Convention does not apply on this basis.

Third, service by email may be considered service by “postal channels,” which is permitted under Article 10(a) of the Convention so long as the receiving state has not objected. As Maggie and I discuss in our article, the U.S. government takes the position that email is a “postal channel” under Article 10(a). The 2024 Special Commission to the Hague Conference, representing 57 countries, also recently endorsed that position.

None of these exceptions was available, however, in Flying Heliball. As Judge Slaughter noted, China is a party to the Hague Service Convention, the addresses of the defendants are known to the plaintiffs, and China has objected to service through postal channels. (The Hague Conference maintains a helpful status table, making each country’s objections easy to find.)

Conclusion

Judge Slaughter is not the only district judge to have answered this question correctly. I have previously praised decisions by Judge Gregory Woods of the Southern District of New York and Judge Kathryn Kimball Mizelle of the Middle District of Florida. Judge Patty Shwartz and her colleagues on the Third Circuit are also to be commended for getting the answer right in a decision that is, unfortunately, unpublished.

Such decisions are uncommon for two reasons. First, motions for service by email are typically made ex parte, so that the judge hears argument only from the party seeking service. Second, a substantial number of cases have (wrongly) held that the Hague Service Convention’s silence about email service equals permission, and it is easy for busy district court judges simply to follow such cases. But when a judge stops to think about the question, as Judge Slaughter did in Flying Heliball, the right answer becomes clear.