SDNY Approves Email Service for Temporary Measures and Contempt

Photo by Alejandro Barba on Unsplash

The Second Circuit’s recent decision in Smart Study Co., Ltd. v. Shenzhenshixindajixieyouxiangongsi made clear that defendants located in Hague Service Convention member states that have objected to service by postal channels typically cannot be served by email. Last month, Judge Rakoff of the Southern District of New York addressed an important limit to Smart Study’s reach: the need for temporary emergency measures, as well as contempt proceedings should the defendant fail to comply.

The Case

In Fox Corp. v. Media Deportes Mexico, S. de R. L. de C.V., Fox alleges that Media Deportes Mexico (MDM) breached an agreement to broadcast sporting events in Mexico using Fox Sports trademarks when MDM obtained from Mexican courts an injunction prohibiting Fox Corp. and other Fox affiliates from themselves using the trademarks in Mexico. Fox sought and received a temporary restraining order (TRO) based on its allegations that MDM’s actions posed “irreparable and catastrophic harm” to Fox’s interests in Mexico. On the same day the complaint was filed, in August 2025, the court granted the TRO and the plaintiffs served MDM by email.

A week later, Fox moved for an order directing MDM to show cause why it should not be held in civil contempt for failing to comply with the injunction. Before a hearing could be held on that motion, Fox filed emergency motions requesting MDM be immediately held in civil contempt because MDM obtained a second injunction from Mexican courts prohibiting the plaintiffs from broadcasting any sports content in Mexico using the name “Fox.” After a telephonic hearing, the court imposed civil contempt sanctions on MDM and several additional entities and individuals. Plaintiffs again served notice of these orders on the contemnors by email.

One of those contemnors, MSD, appeared and moved to set aside the contempt order for lack of personal jurisdiction and insufficient service of process. After evidentiary hearings and briefings, the court rejected both arguments. But after the Second Circuit’s decision in Smart Study, the district court ordered additional briefing. In its February decision, the district court concluded that Smart Study does not speak to service requirements for temporary injunctive relief or civil contempt sanctions for violating such preliminary measures.

Smart Study and the Hague Service Convention

Bill Dodge has previously reported on the Second Circuit’s decision last December in Smart Study. In brief, the Second Circuit held that the Hague Service Convention creates a “closed universe” of means of service: if the Convention applies, only those means of service that it authorizes are permitted. The Convention makes no mention of service by email (unsurprisingly, as it was written in 1965). It does, however, permit service by “postal channels” under Article 10 so long as the receiving country does not object, and there is a growing effort to interpret “postal channels” to include email. But many countries have objected under Article 10. Smart Study held that, at least when a country has objected under Article 10, the Convention does not allow service by email.

In arguing for service by email on defendants in Convention states, plaintiffs rely on Federal Rule of Civil Procedure 4(f)(3), which allows service on defendants outside the United States “by other means not prohibited by international agreement, as the court orders.” As Smart Study explained, however, the Convention “prohibit[s]” means of service it does not affirmatively allow. Thus, service by email cannot be approved under Rule 4(f)(3) for defendants located in Convention states that have objected to service by postal channels under Article 10.

A Different Analysis for Emergency Measures

Mexico has joined the Hague Service Convention but has objected to service by postal channels under Article 10. Thus, Fox will ultimately need to serve MDM in compliance with the Convention, namely through application to Mexico’s Central Authority—a process that Fox began months ago. But as Judge Rakoff explained, there is a critical difference between Smart Study and the current posture of this case: Smart Study addressed service requirements before the entry of a default judgment, while MSD’s challenge to the contempt sanctions pertains to an emergency measure and the court’s efforts to enforce it.

Article 15 of the Convention provides that a “judge may order, in case of urgency, any provisional or protective measures,” even in the absence of completed service pursuant to the Convention. As Judge Rakoff explained, both TROs and preliminary injunctions are provisional (in that they are time limited) and protective (in that they aim to prevent irreparable injury until the controversy can be resolved on the merits). So, too, are civil contempt sanctions: they aim to protect the court’s authority, and they only last as long as the contemnor continues to defy the court’s orders (in the Supreme Court’s famous phrasing, the contemnor “carries the keys of his prison in his own pocket”).

The district court also emphasized that the contemnors appeared to have actual notice of the court’s orders. This is important as a matter of domestic law. While a TRO can issue without notice, Federal Rule of Civil Procedure 65 does require notice before the issuance of a preliminary injunction, and both TROs and preliminary injunctions can only bind (and thus be the basis for contempt sanctions against) those “who receive actual notice of it by personal service or otherwise” (emphasis added).

An Important Limitation

As that emphasized language indicates, Rule 65 distinguishes between notice and service of process: formal service of process need not be completed before temporary measures can be imposed and enforced. This is a critical point for the application of Article 15 in federal court. Notably, Article 15 does not approve of alternative methods of service; it merely notes instances in which service by Convention-approved means need not be completed before other actions can be taken.

The analysis thus changes if the action taken in U.S. court, as a matter of domestic law, does require completed service of process. The Supreme Court has held that personal jurisdiction cannot be established in the absence of authorized service (at least if consent is also lacking). For federal courts, Rule 4 limits service on defendants located outside the United States to means approved by the Convention when the Convention applies. Article 15 does not provide an escape hatch for those Convention methods—it only allows some actions to be taken in the absence of service. Thus, any action taken by a U.S. federal court that requires personal jurisdiction—like the entry of default judgment—first requires service to be completed, and in a Convention state, that means service via the means listed in the Convention.

This may well create impractical outcomes in some scenarios when service through another country’s Central Authority is infeasible or ineffective. I’m not sure what the right answer in those scenarios is: strict compliance with Rule 4 and treaty commitments, a loosening of personal jurisdiction requirements, or resort to legal fictions or fuzzy reasoning to accommodate particularly sympathetic causes. But Judge Rakoff’s decision in Fox at least provides a model for how preliminary measures, and the court’s enforcement of them, need not depend on completed service through Central Authorities.