I like how the judge in today’s case of the day, Signalquest, Inc. v. Tien-Ming Chou (D.N.H. 2012), began: “When service of process absolutely, positively has to be effected on a Taiwanese defendant pursuant to FRCP 4(f)(2)(C)(ii), is Federal Express enough?”
The claim was for patent infringement. Signalquest asserted that Chou and his company, Oncque, were infringing Signalquest’s US patent, and it sought a declaration that it (Signalquest) was not infringing Chou’s US patent. Signalquest asked the clerk to make service under FRCP 4(f)(2)(C)(ii), which provides for service “unless prohibited by the foreign country’s law” by “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” The request was specifically for service via Fedex. The clerk transmitted the documents to the defendant via Fedex, and the defendants moved to dismiss. There were various subsidiary issues—is Fedex a “form of mail,” did it matter that an agent signed for the papers, etc.—but the judge focused on the main issue: what does “prohibited by the foreign country’s law” mean? Some courts say that it refers to methods of service expressly prohibited by the foreign law. Other courts say that it refers to methods of service not expressly permitted by the foreign law. The judge, following what he took to be the majority rule, held that the rule permits service by mail as long as the foreign law does not expressly prohibit it. He focused on the language of the rule, and in particular the plain meaning of the word “prohibit,” and on the consequences of the contrary rule. FRCP 4(f)(2)(A) permits service by methods “prescribed” by the foreign law, and if FRCP 4(f)(2)(C)(ii) also required service of mail to be “prescribed”, then service under FRCP 4(f)(2)(C)(ii) would be available only if service by mail were permissible under FRCP 4(f)(2)(A). But the whole point of FRCP 4(f)(2)(C)(ii) is to provide an alternative to FRCP 4(f)(2)(A).
This decision seems clearly correct to me. There are similar issues that are probably closer calls, e.g., whether Article 10 of the Hague Service Convention affirmatively authorizes service by mail or merely does not forbid it when it is otherwise authorized. But I think the judge was right, in this case, in his focus on the language and function of the provision in question.