The case of the day is Jackson Laboratory v. Nanjing University (D. Me. 2018). The Lab had sold mice to the University with limitations on how they could be used. The contract called for arbitration of disputes in Maine (maybe not the best provision for the Lab, but I digress). The Lab alleged that the University was selling the progeny of the mice, which was contrary to the agreement, and it moved to compel arbitration. It moved under FRCP 4(f)(3) for leave to serve process by alternate means, namely, by personal service on several University officials (presumably in China), by email service on the officials, and by email service on US lawyers who represented NBRI, which was a component of the University but not the University itself, and which was also a defendant in the case.
The court granted the motion. The decision was arguably correct with respect to the US lawyers—many cases correctly hold that as long as due process concerns are satisfied, service on US lawyers is permissible notwithstanding the Hague Service Convention, because the method of service does not call for the transmission abroad of the summons. But it was clearly wrong otherwise. Nanjing University’s address is, of course, known, so the Convention applies. China objects to service under Article 10. So personal delivery, which would be permissible, if at all, under Article 10(b) or (c), is out. Any in any case, it’s not clear that the Lab intended to have a person competent under Chinese law effect the personal service, which it would have to do to make the service valid under the Convention.
I won’t repeat my views on service by email under the Convention in countries that have objected to service under Article 10(a).
Leave a Reply