Email Service for Emergency Measures vs. Default Judgments

Photo by Brett Jordan on Unsplash

As we have repeatedly pointed out on TLB, Federal Rule of Civil Procedure 4(f)(3) does not permit service by email on defendants in China whose mailing addresses are known because such service is not permitted by the Hague Service Convention. I have previously reported on Judge F. Dennis Saylor IV’s thoughtful analysis of this question in trade-dress and patent infringement suits that Whoop, Inc., has brought against various Chinese defendants. In a recent decision, Judge Saylor expanded his analysis to the relationship between emailed notice, Article 15 of the Convention, and the need for emergency measures. That analysis provides a model for other judges asked to issue preliminary injunctions against defendants located in China.

To frame the problem: The federal courts are increasingly recognizing that the Hague Service Convention significantly limits judges’ discretion under Rule 4(f)(3), which allows judges to authorize service on defendants located outside the United States “by other means not prohibited by international agreement.” Because Hague Service Convention is mandatory and exclusive, Rule 4(f)(3) is still limited to those methods of service permitted by the Convention when the Convention applies. For countries like China that have objected under the Convention to service through “postal channels” and do not otherwise authorize service by email via their municipal law, there is no viable argument that the Convention permits emailed service. Thus, federal judges in the United States cannot authorize service by email under Rule 4(f)(3) on defendants in such countries (at least if their mailing addresses are known).

But what about emergency measures, the imposition of which cannot wait for the several months it might take to pursue service through formal Convention channels? Under Federal Rule of Civil Procedure 65, federal courts can only issue preliminary injunctions “on notice to the adverse party.” Luckily, the Convention also recognizes the time sensitivity of emergency measures: Article 15 of the Convention states that “the judge may order, in case of urgency, any provisional or protective measures.” But as Bill Dodge and I have explained, Article 15 doesn’t authorize additional methods of service—it just recognizes that, as a matter of municipal law, a member state may allow preliminary measures without formal service of process.

In Whoop, Inc. v. Shenzhen Wonlex Technology Co., Ltd., Judge Saylor (District of Massachusetts) embraced this distinction between service and notice. The plaintiff had asked for permission under Rule 4(f)(3) to serve defendants in China by email in support of the plaintiff’s motion for a preliminary injunction. The court rejected that request because the flexibility of Rule 4(f)(3) is limited by the Convention, and the Convention in turn does not permit service by email on defendants located in China—and nothing in Article 15 changes that conclusion. Instead, the language of Article 15 permits the imposition of emergency measures without formal service, which in fact aligns with Rule 65’s requirement of “notice.” That is, a preliminary injunction can issue based on notice that satisfies the constitutional standards of Mullane v. Central Hanover Bank & Trust Co. (1950) without needing to separately satisfy the requirements of formal service of process under Rule 4. The court further held that notice by email for purposes of the preliminary injunction would satisfy the Mullane standard. It thus approved emailed notice to the defendants for purposes of Rule 65 even while rejecting the request for emailed service of process under Rule 4(f)(3). (Judges in the Southern District of New York have reached similar conclusions.)

Importantly, Judge Saylor emphasized why this distinction matters: if he approved emailed service under Rule 4(f)(3) for purposes of the preliminary junction, that would satisfy the requirement of proper service needed for default judgment. Yet Article 15 provides that default judgments can issue only when service “was transmitted by one of the methods provided for in this Convention” (which, again, does not include service by email, at least for defendants located in China). By permitting only notice by email for purposes for Rule 65, the court kept the need for emergency measures from overriding the Convention’s guardrails against default judgments issued in disregard of the Convention’s requirements.

Whether Whoop can eventually obtain a default judgment against defendants located in China without completing service through formal Convention channels will be a challenging question when the case progresses that far. But for now, Judge Saylor has demonstrated how to protect plaintiffs’ legitimate needs for emergency measures without violating the Hague Service Convention or exceeding the authority granted by Rule 4(f).