New Decision on Email Service Under the Hague Service Convention

Photo by Brett Jordan on Unsplash

Regular TLB readers may recall that federal district courts are struggling with an important procedural question: whether they may authorize email service when the defendant resides in a country that is party to the Hague Service Convention. In Smart Study Co. v. Acuteye-U.S., Judge Gregory H. Woods (SDNY) held that the answer is no. The means of service set forth in the Convention are exclusive, he reasoned, and service by email is not among them. Plaintiffs appealed, but the Second Circuit dismissed for lack of appellate jurisdiction. (Disclosure: Maggie Gardner and I filed an amicus brief with the Second Circuit arguing that Judge Woods was right.) To date, no federal circuit has addressed the question.

Lacking guidance from the federal courts of appeals, district courts have continued to come down on both sides. A notable recent decision is Duong v. DDG BIM Services LLC (M.D. Fla.), in which Judge Kathryn Kimball Mizelle agreed with Judge Woods that the Hague Service Convention generally does not permit service by email. (Further disclosure: Judge Mizelle relied on our Smart Study amicus brief.) In this post, I explain why Judge Mizelle is right. Unfortunately, hers still appears to be the minority view.

The Facts

The facts in Duong are common in cases requesting email service. Plaintiffs sued for violations of the Lanham Act and the Defend Trade Secrets Act, as well as various common law claims. Two of the three corporate defendants reside in India, as do both the individual defendants. Plaintiffs attempted to serve the Indian defendants under the Hague Service Convention by sending the summons and complaint to the Indian Ministry of Law and Justice but received no reply. In due course, they asked Judge Mizelle to authorize service by email.

The Hague Service Convention

The Hague Service Convention is a treaty to which the United States and 81 other countries are parties. It applies “in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad,” except when “the address of the person to be served with the document is not known.” The Convention requires that contracting states designate a central authority to receive requests for service, serve the documents consistent with its own law, and return a certificate of service to the requesting party.

The Convention permits certain other methods of service. Article 8 permits service by diplomatic and consular agents unless the receiving state objects, and Article 10 permits service through postal channels or judicial officers unless the receiving state objects. Under Article 11 contracting states may agree to additional means of service among themselves, and under Article 19 states may unilaterally permit additional means of service from abroad under their domestic law.

Finally, Article 15 permits each country to declare that it will allow the entry of default judgment, even if no certificate of service has been received, if (1) the document was transmitted by a means permitted by the Convention, (2) not less than six months have elapsed, and (3) every reasonable effort has been made to obtain a certificate through the receiving state. The United States has made such a declaration.

Rule 4(f)

Judge Mizelle began her analysis with the text of Federal Rule of Civil Procedure 4(f), which governs service of process on individuals in foreign countries. (Most of its provisions also apply to service on corporations through Rule 4(h)(2).) Rule 4(f) permits service abroad:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country’s law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

The Hague Service Convention does not affirmatively authorize service by email (which is unsurprising, since it was concluded in 1965). So, Rule 4(f)(1) did not apply.

Judge Mizelle concluded that Rule 4(f)(2) also did not apply. “Because the Convention affirmatively authorizes service via at least one means—a contracting party’s central authority—the first clause is inapplicable,” she noted. “And although some alternative methods of service are not prohibited by the Convention under appropriate circumstances, that does not mean that the second clause applies. Rather, the universe of ‘non-prohibited’ means is bounded,” she wrote, citing Article 10’s permission of postal mail unless the receiving country objects and Article 11’s allowance of other means agreed by the two countries. That left Rule (f)(3) and brought the judge to the question whether service by email is “prohibited by international agreement.”

Does the Hague Service Convention Prohibit Service by Email?

Under the Convention, Judge Mizelle noted, “[s]ervice on a foreign defendant via a contracting party’s central authority is the primary internationally agreed means of service.” The Convention does allow other means of service, however. As she explained,

Article 8 provides that, absent a contracting party’s objection, service through diplomatic or consular agents is not prohibited. Article 10 says the same thing about service by mail and service through judicial officers. Article 11 provides that the Convention does not prohibit alternative methods of service based on a bilateral or plurilateral agreement between contracting parties. And Article 19 reserves the right for contracting parties to provide plaintiffs with greater flexibility under domestic law.

These provisions “establish a limited universe of alternative service methods” that are not prohibited, Judge Mizelle noted. But none of them expressly allow service by email.

Plaintiffs argued that the Convention does not prohibit alternative means of service that are not discussed in the Convention. “That is wrong,” Judge Mizelle wrote, “as a matter of text, structure, and precedent.” First, this interpretation would “neuter” Articles 11 and 19. “The assumption underlying these provisions is that, without consent, alternative means of service are verboten. Otherwise, what use is there for supplemental agreements between contracting parties or domestic law reforms if every undiscussed method is available by default?” Both the Supreme Court’s decision in Water Splash, Inc. v. Menon (2017) and traditional rules of statutory interpretation “disfavor such a ‘structurally implausible’ interpretation.”

Plaintiffs’ reading was also implausible considering Articles 8 and 10, which preserve a country’s right to object to certain alternative means of service. “This sovereignty-enhancing feature would be a dead letter on Plaintiffs’ view,” Judge Mizelle wrote, “as contracting parties have no procedural mechanism to object to an alternative method of service that is not discussed in the Convention.”

The Hague Service Convention was intended to facilitate service abroad by requiring each contracting state to establish a central authority for that purpose. “And although the Convention does not prohibit a limited universe of alternative service methods, subject to a contracting party’s consent,” Judge Mizelle concluded, “email service is not one of them.”

The Possibility of Default Judgment

Judge Mizelle went on to discuss the possibility of entering default judgment if the plaintiffs were unsuccessful in serving the foreign defendants through India’s central authority. “To reject Plaintiffs’ expansive readings of Rule 4(f)(3) and the Convention,” Judge Mizelle noted, “is not to leave them without recourse if India’s central authority fails to hold up its end of the bargain.” “Article 15, which governs default judgments, appears to provide a safety valve if service remains unperfected for more than six months despite ‘every reasonable effort’ to do so ‘through the competent authorities of the State addressed.’”

Of course, plaintiffs seeking default judgment pursuant to Article 15 “must still perfect service on a foreign defendant as required by due process and Rule 4(f) as a matter of domestic law.” But, Judge Mizelle reasoned, once the requirements of Article 15 are met, “any method of service—or no service at all—becomes ‘not prohibited’ under the Convention for purposes of entering a default judgment.”

On this point, I have my doubts. Article 15 does authorize the entry of default judgment if plaintiffs have attempted service under the Convention and at least six months have elapsed. But Article 15 says nothing about authorizing additional means of service under these conditions. If, as a matter of U.S. law, a default judgment requires the transmission of documents for service abroad, then the Convention applies along with all its limitations on means of service. Certainly, Article 15 allows entry of a default judgment without service if its conditions are met. But, unfortunately, the Federal Rules of Civil Procedure do not.

A Rare Decision

As Judge Mizelle noted, “[d]istrict courts around the country are deeply split” on whether the Hague Service Convention permits service by email. Unfortunately, the trend seems not to be in the right direction. In the month prior to the decision in Duong, six other decisions addressed the question, and all of them went the other way.

How is it possible that so many district courts could be getting this issue wrong? First, as Maggie has noted, motions for alternative service are often ex parte, which means that the judge hears arguments only on one side. “Diligent (but busy) judges and law clerks can easily overlook contrary law and reasoning,” she notes, “when only one side of a dispute appears before the court, especially if that one side … does not cite any contrary authority.” The motion for service in Duong was also ex parte, and Judge Mizelle should be commended for taking time to explore the other side.

Second, district courts authorizing email service may rely on prior decisions from other district courts that have done the same. As a judge in the Western District of Oklahoma wrote the day before the Duong decision, “numerous district courts within the Tenth Circuit have rejected Shenzhen’s argument that service by email is invalid because it is prohibited by the Hague Convention and further found that service by email complies with Rule 4(f)(3).” Yet, as Maggie has also noted, these prior decisions themselves often “resolved the question without the aid of adversarial briefing.”

Third, there is as yet no federal appellate decision addressing the question. Smart Study provided a chance for the Second Circuit to weigh in. But, as noted above, the court concluded that it lacked appellate jurisdiction. My guess is that questions of alternative service are rarely appealed, particularly when the defendant never appears and the district court enters a default judgment.

Conclusion

To be clear, email service does not always conflict with the Hague Service Convention. This is true when the address of the person to be served is unknown (because the Convention does not apply), when the contracting states have agreed to allow email service (under Article 11), and when the receiving state permits email service in its domestic law for documents coming from abroad (under Article 19). But the Convention does not permit email service in other circumstances.

Judge Mizelle’s well-reasoned decision in Duong shines like a ray of light through a fog of ignorance. The question whether the Hague Service Convention permits service by email is not inherently difficult. But there are now so many decisions that have answered it incorrectly that it takes effort for district courts to break out of the “echo chamber” and reach the right decision.