The case of the day is McIntire v. ChinaMediaExpress Holdings, Inc. (S.D.N.Y. 2013). The case was a putative class action alleging securities fraud against Deloitte Touche Tohmatsu in Hong Kong SAR and others in connection with securities of China MediaExpress Holdings, Inc. The plaintiffs served Deloitte in Hong Kong by private process server on a corporate representative. DTT moved to dismiss on the grounds that the service did not comply with the Hague Service Convention.
The judge denied the motion, citing Article 19 and Article 10(b) and (c), without much discussion. But it’s worth looking a little closer.
The main question was whether the service was permitted under Articles 10(b) or (c), which provide:
Provided the State of destination does not object, the present Convention shall not interfere with—
* * *
(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.
The judge cited a State Department circular on Hong Kong judicial assistance which states:
Hong Kong did not make any reservations with respect to service by international registered mail or service by agent. However, Hong Kong advises that service by the Convention is the preferred method.
It’s not really clear what the reference to “service by agent” means here. Hong Kong has, however, made a declaration under Articles 10(b) and (c):
With reference to the provisions of sub-paragraphs b and c of Article 10 of the Convention, documents for service through official channels will be accepted in the Hong Kong Special Administrative Region only by the Central Authority or other authority designated, and only from judicial, consular or diplomatic officers of other Contracting States.
I read this to mean that service under Articles 10(b) or (c) is possible only if the document is sent by an official of the state of origin to the central authority or another authority of Hong Kong, and not, as here, by a party transmitting the document to a private process server for service, even granting that the private process server is a competent person under Hong Kong law.
I think, therefore, that the judge got the Article 10 issue wrong.1 Interestingly, there was a simpler alternative: Hong Kong has made no reservation under Article 10(a), and therefore, under FRCP 4(f)(2)(C)(ii), the plaintiffs could simply have served the documents by mail.