Case of the Day: Zhang v. Baidu.com
Posted on June 18, 2013
We return today to Zhang v. Baidu.com, the case of the day from April 2, 2013. In the prior decision, the judge granted a motion to dismiss and denied a cross-motion for default judgment where China’s central authority had refused to serve the summons and complaint, citing Article 13 of the Hague Service Convention. The judge granted leave to Zhang to submit further arguments on the question whether he could serve Baidu.com’s US lawyers under FRCP 4(f)(3). I did not hold out much hope that the judge would get this one right, since he cited the much-maligned (by me) decision in Gurung v. Malhotra, but kudos to Judge Jesse M. Furman for correctly holding, in today’s decision, that an Article 13 objection by the state of destination does not bar alternate service on the foreign defendant’s US counsel.
Baidu argued that “ordering alternative service would effectively override China’s invocation of its own sovereignty and security.” That argument has surface appeal, but in my view Article 13 is aimed at allowing a foreign country to refuse a request to make service of process in its own territory when it believes the service would be contrary to its sovereign interests. If there is no request to the Chinese government for assistance in making service, and moreover, if there is no service in China’s territory,1 then the sovereignty interests that Article 13 means to protect simply aren’t in play. More to the point, if a plaintiff does not attempt to transmit documents into a foreign country, then under Article 1 the Convention is inapplicable from the get-go. The judge specifically rejected Gurung’s suggestion to the contrary as inconsistent with the plain language of FRCP 4(f)(3); the Rule permits alternate service unless the means of service—not the fact of service itself—are contrary to international agreement. I hope this is the beginning of a reevaluation of the many failings of Gurung.
- This point about the absence of service in Chinese territory is really just a subsidiary point, since FRCP 4(f)(3) permits service abroad that violates the law of the foreign state where service is made—though not service that violates the Hague Service Convention in cases where the Convention applies.