The case of the day, XCentric Ventures, LLC v. Karsen, Ltd. (D. Ariz. 2011), is another example of a plaintiff’s ex parte motion to approve its efforts to serve process on the defendants. As I have previously commented, I question whether these kinds of motions are justiciable—why should the court give what is essentially an advisory ex parte opinion? Anyway, on to the substance of the case, which raises an interesting point: is service by email on a defendant abroad in a Hague Service Convention country, rather than on the defendant’s US lawyer or agent, proper?

XCentric operates a “consumer complaint website.” It discovered material on Karsen’s website that allegedly infringed its copyright, and it sent take-down notices to Google pursuant to the Digital Millennium Copyright Act. Google complied with the take-down notices by removing the allegedly infringing content, and Karsen, as contemplated by the DMCA, then served a counter-notice on Google, which, as required by statute, contained its “name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of the Federal District Court … and that the subscriber will accept service of process from the person who provided [the take-down notice].” The address provided was in Russia.

XCentric then sued Karsen for infringement. It attempted to serve the summons and complaint via Fedex sent to the Russian address Karsen had specified, and via email. The Fedex package was returned with a notation that the address was incorrect. Karsen responded to the email with an email of its own objecting to the purported service and stating that service had to be made as provided by the Hague Service Convention. (I wonder whether Karsen knew that Russia has unilaterally suspended cooperation with the US under the Convention, thus making Karsen’s demand impossible to fulfill).

The court, ignoring the strongly held view of Letters Blogatory, addressed the merits of the motion, but it held that XCentric had failed to make service of process, because the service by Fedex did not reach XCentric and because alternate means of service, such as email, are impermissible without leave of court. (The court failed to note that Russia had objected to service by postal channels, which would have made the service by Fedex improper even if it had reached Karsen, assuming, as several cases have held and as the Permanent Bureau of the Hague Conference suggests, that private courier services are within the meaning of the term “postal channels” as used in Article 10(a) of the Convention). The court went on, however, to grant leave to serve process by alternate means, namely email. This raises an interesting question, and one we haven’t considered before. We know that service by email in a non-Hague Service Convention country is permissible as a form of alternate service of process, because it is not forbidden by international agreement (CFTC v. Aliaga). We know that service by email on a defendant’s US lawyer is permissible as a form of alternate service of process, because it does not involve transmission of a document abroad (Dyer v. Can-Truck). But what happens when the email is transmitted to a defendant abroad in a Hague Service Convention country?

The first answer is that when, as in this case, the defendant’s address is unknown, the Convention is inapplicable, and therefore, the US court can authorize alternate service by email without regard to the Convention. For this reason, I think the case of the day is correctly decided. But suppose that the address of the defendant is known: can the plaintiff seek leave of court to effect service of process by email, notwithstanding the Convention?

In 1999, a Round Table organized by the Permanent Bureau and the University of Geneva concluded that it was permissible, under the Convention, to transmit documents to a foreign central authority via email under Article 3, that it was permissible, under the Convention, to transmit documents to the judicial officers or competent persons in the state of destination under Article 10(b) and (c), and that it was permissible, under the Convention, to transmit documents to the state of origin’s diplomatic or consular officers in the state of destination for service under Articles 8 or 9.

The issue whether e-mail is within the postal channel is more difficult. Article 14 of the Universal Postal Convention defines “electronic mail” as “a postal service involving the electronic transmission of messages.” Member countries of the Universal Postal Union or their “designated operators” “may agree with each other to participate in” electronic mail service. But given the language of Article 14, it seems that electronic mail is within the postal channel only where the message is transmitted via an email to the postal service, which then transmits it using an “e-Post” or similar service. In other words, it does not appear that private emails are ordinarily within the postal channel. Therefore, we cannot simply look to a state’s Article 10(a) declaration, or the lack of such a declaration, to figure out whether service by email is permissible.

Under Rule 4(f)(3), a method of alternate service is permissible as long as it is “not prohibited” by the Convention. Of course, the Convention does not expressly prohibit service by email. But on the other hand, the Convention is “mandatory in all cases to which it applies,” as the Supreme Court held in the Volkswagen case. This means, I think, that if the Convention applies—if a document is to be transmitted abroad and if the defendant’s address is known—the plaintiff has to use one of the channels of transmission prescribed by the Convention. Thus, it seems to me that service by email is impermissible under the Convention unless either:

1. the defendant’s address is unknown, so as to make the Convention inapplicable altogether under Article 1; or
2. the service is accomplished through the use of an “e-Post” or similar service made available by the postal service or designated operator of the state of origin, such that the service can be said to make use of the postal channel (assuming, of course, that the state of destination has not objected to service by postal channels); or
3. service by email is permissible under the law of the state of destination, such that under Article 19, the Convention permits plaintiffs to make use of it.