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.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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