Case of the Day: Overstock.com v. Visocky
Posted on October 22, 2018
The case of the day is Overstock.com, Inc. v. Visocky, (E.D. Va. 2018). Overstock sued Viktor Visocky, Otto Srams, Olga Korischenko, Alexander Bekoev, and others for trademark and copyright infringement, violations of the Computer Fraud and Abuse Act, etc. Korischenko and Bekoev were in Russia, and Visocky and Srams in Latvia. Overstock sought and received leave to serve these defendants by email. The opinion does not say, one way or the other, whether their addresses were known, although the motion for leave suggests without saying outright that in fact their addresses were unknown. Both Russia and Latvia are parties to the Hague Service Convention. Russia has objected to service by alternate means. Latvia has made a limited objection to service by postal channels that reads:
[T]he Republic of Latvia does not object to the freedom to send a judicial document, by postal channels, directly to an addressee within the Republic of Latvia (paragraph (a) of Article 10) if the document to be served is in Latvian or it is accompanied by translation into Latvian and it is sent to the addressee using a registered postal letter (with an acknowledgement of receipt).
Overstock sought a default judgment and the magistrate judge recommended that the court grant it. (The court adopted this portion of the report without discussion, so this post focuses on the report and recommendation rather than the court’s final decision).
I haven’t done this in a while, but I thought it would be worth restating the reasons why decisions like this—and there are many at the district court level—are unquestionably wrong, assuming that the foreign defendants’ addresses are known and the Hague Service Convention applies. As long-time readers know, I came close to getting an appellate decision on this point a year or two ago, but I was foiled when it turned out that my client had a strong and ultimately victorious argument that the district court had lacked subject matter jurisdiction (because the client was a US citizen domiciled abroad). I think it is still correct to say that although there are many erroneous district court decisions on point, beginning with Gurung v. Malhotra, there are as yet no federal appellate cases one way or another. So appellate law clerks, this one’s for you.
- The Hague Service Convention is exclusive (or as the Supreme Court has said, “mandatory”—see this recent post for an explanation of the terms “exclusive” and “mandatory” here. This means that when the Convention applies, a plaintiff must use one of the methods of service that the Convention authorizes or permits. See this post for an explanation of the need to distinguish “authorized” methods of service from “permitted” methods of service.
- The Convention authorizes one main method of service, namely service via the receiving state’s central authority under Article 5. The Convention also permits several alternate methods of service under Articles 8 through 10, for example, service by postal channels, or service through diplomatic or consular channels.
- Under FRCP 4(f)(3), a court cannot authorize a method of service that is forbidden by the Convention. Since the Convention is exclusive, it forbids whatever it does not authorize or permit—that’s just what it means to say that the Convention is exclusive.
- So the first question a court should ask, when faced with service by email in a Convention state is, “what provision of the Convention either authorizes or permits service by email?”
- There is a way to answer this question: perhaps Article 10(a) permits service by email, because it permits service “by postal channels.” Perhaps electronic mail should be treated as analogous to regular postal mail. I don’t think that’s right, but it’s a possible argument. In any case, Article 10(a) seems to be the only provision of the Convention that even arguably would permit service by email.
- But the Convention gives states the power to object to service by postal channels, and both Russia and Latvia have done so here (Latvia’s objection is not a complete objection, but it is clear from the objection that Latvia would object to an attempt to service by email). So even if it is possible to argue that service by email is permitted by Article 10(a), that argument doesn’t get you anywhere in a case like this, where the state of destination has made an objection to the use of Article 10(a).
- Thus there is no provision of the Convention that authorizes or permits service by email in this case. It was error to enter a default judgment and indeed, error to authorize service by email in the first place. (I leave open the possibility that the defendants’ addresses were unknown, in which case the Convention does not apply, see Convention Article 1. But it’s unclear whether that possibility applies here).
The magistrate judge here made a point that many of the earlier wrongly decided precedents make: service by email is okay because the foreign state’s declarations did not expressly object to service by email. But this is nonsense. Russia says that it objects to service by postal channels, period. So if Article 10(a) is out, what other provision of the Convention can the plaintiff point to? None, as I have just shown.
In short: in cases where the Convention applies, and where the state of destination has objected to service by postal channels, service by email is improper.