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.