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The Blog of International Judicial Assistance
By Ted Folkman of Rubin and Rudman LLP

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New Paper on SSRN: Gurung v. Malhotra Is Wrongly Decided

The White WhaleLong-time readers will know that Gurung v. Malhotra, 279 F.R.D. 215 (S.D.N.Y. 2011), the 2011 decision on service of process by email, is my white whale. I have watched with dismay as a handful of new cases have cited Gurung in support of the erroneous position that service by e-mail is permissible in cases where the Hague Service Convention applies.

I’ve posted a paper on SSRN, modestly titled Gurung v. Malhotra is Wrongly Decided, to try to turn the tide. The basic argument is this:

  1. The Convention is exclusive. If it applies, you have to one of the methods of service it permits.
  2. The only method of service the Convention permits that even arguably extends to service by email is service by postal channels.
  3. If the state of destination has objected to service by postal channels, then service by email is impermissible in that state.
  4. Somewhat more speculatively, even if the state of destination has not objected to service by postal channels, service by email is still impermissible, because email is not within a fair reading of the term “postal channel.”

I welcome readers’ reaction to the paper and critiques of my position. Federal judges, and law clerks to federal judges: think about it! That’s all I ask.

Ted Folkman

5 responses to “New Paper on SSRN: Gurung v. Malhotra Is Wrongly Decided”

  1. Case of the Day: Professional Investigating & Consulting Agency v. Suzuki | Letters Blogatory

    […] if you think email comes within the definition of postal channels. But for reasons I give in my recent paper, I don’t think that’s […]

    Reply
  2. Case of the Day: Elobied v. Baylock | Letters Blogatory

    […] is an important case, because it refutes the shoddy reasoning of Gurung v. Malhotra and its […]

    Reply
  3. Case of the Day: Title Trading Services v. Kundu | Letters Blogatory

    […] I’m not going to repeat everything there is to say about this issue. Interested readers may want to take a look at my paper, Gurung v. Malhotra is Wrongly Decided. […]

    Reply
  4. Case of the Day: St. Francis Assisi v. Kuwait Finance House | Letters Blogatory

    […] permissible, if at all, only by analogy to service by post). For a quick summary of my view, see Gurung v. Malotra is Wrongly Decided and FTC v. PCCare […]

    Reply
  5. Case of the Day: FKA Distributing v. Yisi Technology | Letters Blogatory | Letters Blogatory

    […] The case of the day is FKA Distributing Co. v. Yisi Technology Co. (E.D. Mich. 2017). FKA sued Yisi, a Chinese firm. FKA first simply emailed the summons to Yisi, but after Yisi failed to respond, it made a request for service under the Hague Service Convention. Although only a few months had passed, FKA sought leave to serve by email, given that the “vendor who served the Summons for them” told them that the service could take more than a year. One wonders why the vendor didn’t explain this before making the request for service under the Convention! In any case, the judge allowed the motion, joining the many district courts that have held that the Convention permits service of process by email, even in countries that have objected to service by postal channels. It doesn’t appear that the defendant’s address was unknown. I won’t repeat what I’ve written many times before. […]

    Reply

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