The case of the day is Lustig v. Wilson (In re Richmond Group) (Bankr. W.D.N.Y. 2017). Lustig, the bankruptcy trustee of the Richmond Group, sued Wilson, who resided in New Zealand. Lustig sought leave under FRCP 4(f)(3) to serve process on Wilson by email. New Zealand is not a party to the Hague Service Convention, so the court couldn’t simply say that service by email is impermissible under the Convention.
Rule 4(f)(3) motions are of course discretionary. The court denied the motion, and the decision was within its discretion. But its reasoning was not strong. The judge noted that Lustig had not shown that service by email would be permissible under New Zealand law. For one thing, FRCP 4(f)(3) permits the court to authorize methods of service even if actually forbidden by the foreign law, and for another thing, even if New Zealand would not recognize service by email as a valid method of service in its own civil cases, it is a common law jurisdiction and thus unlikely to have the kind of objections to service by alternate means that you expect from a civil law jurisdiction. So there is little weight to the judge’s point. The judge’s remark that Lustig was seeking to “tread on the sovereignty of New Zealand” makes little sense in the context of a common law jurisdiction. As the New Zealand government said in its answers to a 2008 Hague Conference questionnaire:
Also, as a common law country we do not object to the private service of foreign process in New Zealand.
the judge also focused on the uncertainty about whether the resulting judgment would be enforceable in New Zealand. In general, it seems to me the court should leave the question of enforcement to the plaintiff. If the method of service Lustig proposed to use would lead to a judgment that was not enforceable in New Zealand, that is Lustig’s problem, not the court’s. But more to the point, just because a method of service would not be valid under the foreign law, it is not necessarily the case that the foreign court would refuse to enforce a US judgment that made use of the method of service, particularly if there is no doubt about actual notice and an opportunity to defend.
In short, I think the judge’s decision, while not an abuse of discretion, makes some questionable assumptions.
All of this said, certainly the most conservative course is a letter rogatory. New Zealand has rules of court providing for the execution of such letters. The real reasons not to use a letter rogatory if you can help it are time (it’s unclear to me how long a New Zealand court would take to execute a letter) and money (the US State Department charges a hefty fee for transmitting a letter rogatory). Given the court’s decision, the plaintiff may now be stuck making use of the cumbersome traditional process.