The case of the day is Amirit Technologies, Inc. v. HTN Wireless, Inc. (D.N.J. 2017). Amirit, a New Jersey telecommunications firm, sued HTN and one of Amirit’s former employees, Syed Muneeb Arshad. Amirit sought to serve process on Arshad in Connecticut unsuccessfully. HTN’s counsel told Amirit that Arshad was living in Pakistan. His address, though, was unknown. Amirit sought leave to serve process by email under FRCP 4(f)(3).

Unfortunately, the judge got the analysis almost entirely wrong. There is no Hague Service Convention issue in the case, because Amirit’s address was unknown, and under Article 1, the Convention does not apply when the defendant’s address is unknown. But the judge went on to consider whether the Convention permitted such service.

Pakistan has not objected to service by postal channels under Article 10(a). So if the Convention did apply, the issue would be whether email is within the scope of the term “postal channels.” That’s a real question. But instead, the judge had this to say:

Plaintiff has made no showing that Arshad is in fact a “national” of the United States as required by Article 8 of the Convention. If Arshad is not a national of the United States Amirit cannot effectuate service in Pakistan by any means under the Convention.

This makes no sense. There’s no requirement that the defendant be a national of the United States in order to permit service under the Convention. And Article 8 is essentially never used by US litigants, because the State Department does not permit US foreign service officers to serve process abroad on US nationals except in very rare cases.

The judge made some useful observations about service by email generally: it’s difficult to prove receipt, and therefore there may be due process concerns. But the judge also suggested that “Plaintiff has not made a sufficient showing that it took measures to explore all service options in the U.S. or that it made appropriate inquires in Pakistan regarding service.” Motions under FRCP 4(f)(3) are addressed to the court’s discretion, so it’s not that the judge erred, but in general you don’t have to try other methods of service first before turning to FRCP 4(f)(3).