The case of the day is Rice v. Electrolux Home Products, Inc. (M.D. Pa. 2018). The case is a putative class action alleging product defects in a microwave oven. The opinion is, I’m sorry to say, a real stinker. The plaintiffs had to serve process on Microwave And Electrical Appliances Manufacturing Company, Ltd., a Chinese firm. They sought leave to serve process by alternate means under FRCP 4(f)(3). In particular, they sought leave to serve by email and by hand delivery to the US law firm that had opposed the motion on behalf of the Chinese company.

The lawyers claimed they didn’t represent the Chinese firm even though even though they were opposing the motion on its behalf. Counsel wrote that “they have not acted as a representative of or provided legal services to Midea Microwave China or have regularly communicated with Midea Microwave China with respect to these matters.” Come again? The judge rejected the motion to serve process on counsel, noting that “Counsel for Midea America has not confirmed whether or not they will represent Midea China once served; counsel asserts that they ‘do not and have not to date represented Midea Microwave China.’” This seems clearly wrong. Counsel effectively represented the Chinese firm by opposing the motion on its behalf, and the judge’s acceptance of counsel’s statement that they had not “regularly communicated” with the defendant is surprising and, I think, naive.

The judge did correctly reject the attempt to serve process by email. The best rationale would have been to say that service by email in China cannot be permissible as long as the Hague Service Convention applies, for reasons I am not going to repeat. But instead, the judge found that the individuals whose email addresses were to be used were technical employees, not lawyers, and that they probably would not be able to understand the documents. This seems a permissible ground for exercising the court’s discretion, although I think the judge might have reasoned the other way on this point just as easily.