The Year In Review 1: Service By Email Under The Hague Service Convention

This is the first in a series of “year in review” posts, where I eschew my usual “case of the day” format and comment more generally on some issues from the past year that seem significant to me. The topic of this post is service of process via email. Does the Hague Service Convention permit it? My short answer: no.

The Law of the Forum

A threshold question, of course, is whether the law of the forum permits service by email. Let’s limit ourselves to cases in the federal courts. While service by email is not available as a matter of course, it’s clear that under Fed. R. Civ. P. 4(f)(3), courts can authorize service of process by email in particular cases as long as an international agreement does not forbid it. The rule provides:

Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:

* * *

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

“Occasion to Transmit a Judicial or Extrajudicial Document For Service Abroad”

A second threshold question is whether the Hague Service Convention applies at all to service by email. Under Article 1, the Convention applies only where “there is occasion to transmit a judicial or extrajudicial document for service abroad.” Suppose I send an email to a defendant in a foreign country attaching a copy of a summons and complaint. Have I “transmitted” the documents “for service abroad?”

We could get into the technical details of what actually happens when I send an email. In the usual case, my computer sends the message to a server operated by my internet service provider, which sends the message to a server operated by the recipient’s ISP. That server delivers the message to the recipient’s mailbox, and the recipient can then retrieve the message. Now, it may or may not be the case that the computers to which the message is ultimately delivered are located in the country where the defendant will be when he retrieves the message. These days, what with web-based email services such as Gmail, I suspect it’s less likely than it used to be that the servers are in fact located in the same country as the defendant. Nevertheless, ultimately the servers must make the contents of the message available to the defendant wherever he or she may be. So it seems to me that as a functional matter, email should be treated as a transmission of the documents into the country where the defendant will read them.

Postal Channels

If I’m correct and service by email constitutes a “transmission” of the documents “for service abroad”, such that the Convention applies, then the question is: what provision of the Convention authorizes service of process by email? This question arises because the Convention is exclusive. In other words, when the Convention applies, the plaintiff must use one of the methods it permits to make service of process.

With a minor exception discussed below, the only provision of the Convention that could possibly be read to permit service by email is Article 10(a), which provides:

Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.

So—is email within the definition of “postal channels”? In general, I think the answer to this question is no. As I wrote back in August:

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.

If this is right, then service by email simply is not permitted by the Convention (to my knowledge, the USPS does not offer an “e-Post” service that would qualify as “electronic mail” under Article 14 of the UPC).

If this is wrong, then service by email would be permitted with leave of court under Rule 4(f)(3) in Hague Convention cases, but only in states that have not objected to service by postal channels.

Article 19

Article 19 of the Convention provides:

To the extent that the internal law of a Contracting State permits methods of transmission, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions.

Although there are few if any US cases on point, it seems to me that under Article 19, service by email would be consistent with the Convention if the law of the foreign state itself permits service by email. Now, “permits” could mean “expressly permits”, or it could mean “does not prohibit”—an ambiguity we discussed in connection with Sbarro v. Tukdan. If “permits” has the former meaning, then Article 19 is probably not very significant here. If it has the latter meaning, then Article 19 may be significant indeed, as I suspect many states have not expressly banned service by email, even if most states have not expressly permitted it.

The US Precedents

Are the US cases consistent with my view? Mostly yes. There are cases, such Agha v. Jacobs (N.D. Cal. 2008), that make precisely the point I’m making here, namely, that service by email is inconsistent with the Hague Convention. There are many cases that authorize service of process by email on foreign defendants, but only a very few are contrary to my view. This is particularly so because under Article 1 of the Convention, the Convention does not apply at all where the defendant’s address is unknown. Here is how I break down the cases.

Cases where the foreign state was not party to the Convention

Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (Costa Rica)
Liberty Media Holdings, LLC v. Vinigay.com (D. Ariz. 2011) (Brazil)
CFTC v. Aliaga (S.D. Fla. 2011) (Dominican Republic)
Lyman Morse Boatbuilding Co. v. Lee (D. Me. 2011) (Brazil)
Craigslist.com v. Meyer (N.D. Cal. 2010) (Thailand)
Napp Techs. LLC v. Kiel Labs., Inc. (D.N.J. 2008) (India, prior to its accession to the Convention)
Alu, Inc. v. Kupo Co. (M.D. Fla. 2007) (Taiwan)
Williams v. Advertising Sex LLC (N.D. W. Va. 2005) (Australia, before its accession)
Ehrenfeld v. Bin Mahfouz (S.D.N.Y. 2005) (Saudi Arabia)
Ryan v. Brunswick Corp. (W.D.N.Y. 2002) (Taiwan)

Cases where the defendant’s address was unknown

In re Heckmann Corp. Securities Litigation (D. Del. 2011) (China)
XCentric Ventures LLC v. Karsen Ltd. (D. Ariz. 2011) (Russia) (Fedex returned with an “incorrect address” notation)
Chanel, Inc. v. Zhixian (S.D. Fla. 2010) (China)
Prediction Co. v. Rajgarhia (S.D.N.Y. 2010) (India)
Chanel, Inc. v. Zhibing (W.D. Tenn. 2010) (China)
Chanel, Inc. v. Zhizhong (W.D. Tenn. 2010) (China)
Chanel, Inc. v. Song Xu (W.D. Tenn. 2010) (China)
SEC v. Lines (S.D.N.Y. 2009) (Switzerland)
US v. Machat (S.D.N.Y. 2009) (United Kingdom)
Phillip Morris USA v. Veles Ltd. (S.D.N.Y. 2007) (various countries)
BP Products N. Am., Inc. v. Dagra (E.D. Va. 2006) (Pakistan)
Popular Enters., LLC v. Webcom Media Group, Inc. (E.D. Tenn. 2004) (Portugal)
Int’l Raelian Movement v. Hashem (E.D. Cal. 2009) (Egypt; case is ambiguous as to whether plaintiff knew defendant’s address)
MacLean-Fogg Co. v. Ningbo Fastlink Equip. Co. (N.D. Ill. 2008) (China; address was arguably unknown)
Williams-Sonoma, Inc. v. Friendfinder, Inc., (N.D. Cal. 2007) (various countries; the plaintiff had no addresses for “a number of” defendants)
D’Acquisto v. Triffo (E.D. Wis. 2006) (Canada)
Viz Comm’ns, Inc. v. Redsun (N.D. Cal. 2003)

Cases contrary to my view

Gurung v. Malhotra (S.D.N.Y. 2011) (India)

There is also at least one case where the court permitted service by email on the grounds that the foreign law expressly permitted such service, which suggests Article 19 considerations, though the court does not address the point explicitly. See In re Potash Antitrust Litigation (N.D. Ill. 2009) (Russia).

Conclusion

It seems to me that because private, commercial email is not within the meaning of “postal channels,” the Hague Convention does not permit it in cases where the Convention applies. Almost all of the cases allowing service by email are cases where the Convention does not apply, either because the foreign state was not a party to the Convention or because the defendant’s address was unknown.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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