The case of the day is Multisports USA v. The Hut.com Ltd. (S.D. Fla. 2016). Multisports sued TheHut.com Ltd., a UK company, for tortious interference in business relationships. The claim was that The Hut.com had tortiously interfered in Multisports’ relationship with Compressport, for which it acted as exclusive US distributor of sports merchandise. Multisports attempted to serve process on TheHut.com by mail, apparently sent by Multisports or its lawyers rather than by the clerk. TheHut.com moved to dismiss for insufficient service of process.
The judge got this one right, though without fully plumbing the depths. She opined, in dicta, that the Hague Service Convention permits service by mail. But before you even get to the question of whether the Hague Service Convention permits service by mail, you have to ask whether the service satisfies the law of the forum. The judge held that the service was insufficient because the Multisports neither arranged for the clerk to address and send the documents, as FRCP 4(f)(2)(C)(ii) requires, nor sought leave of court, as FRCP 4(f)(3) requires. I agree with this. Now, there are some cases holding that the Convention itself authorizes service by mail, and that service by mail is therefore authorized by FRCP 4(f)(1). But in my opinion the better view is that the Convention merely permits service by mail if some provision in the law of the forum authorizes it, so that it is necessary to look for FRCP 4(f)(2) or (3), just as the judge held. (I discussed this issue in a 2012 post citing the two leading cases, Ackerman and Brockmeyer). While the judge didn’t get to this level of detail, her conclusion was, in my view, correct.
The issue about whether Article 10(a) authorizes or merely permits service by mail takes on increased importance in light of the grant of certiorari in Water Splash v. Menon. In the petition, the question presented is: “Does the Hague Service Convention authorize service of process by mail?” The wording here is unfortunate, because the case does not present the question about authorizing versus permitting, and I fear that the decision might use some loose language that will inadvertently tilt the scales on that question, which should be preserved for a later case. I will post separately on this point on the off chance any of the justices’ clerks is keeping an eye on my coverage!