The White Whale

The case of the day is Patrick’s Restaurant, LLC v. Singh (D. Minn. 2019). The case is in the genre of Hague Service Convention cases that I love to hate—cases following the lead of Gurung v. Malhotra, my white whale of international judicial assistance.

The question is whether a court may order service by email under FRCP 4(f)(3) in India in a case where the Hague Service Convention applies (i.e., where the defendant’s address is known, where the case is civil or commercial, etc.). The judge said yes, and cited as precedent many district court decisions saying the same thing. Let me give, once again, the unanswerable and plainly correct argument that shows why this is wrong.

  1. Everyone agrees that the Convention is exclusive, which means that when it applies, you have to use one of the methods of service that it authorizes or at least permits. This is the holding of Volkswagen, and the distinction between authorized and permitted methods is found in Water Splash v. Menon.
  2. There is no provision in the Convention that expressly authorizes or permits service by email. If any provision does the trick, it’s Article 10(a), which permits service by postal channels—but only when the state of destination has not objected.
  3. India has objected. Since the only possible provision that permits service by email can’t be used, the service is improper under the Convention.
  4. A court cannot use FRCP 4(f)(3) to authorize a method of service that is inconsistent with a treaty.

That’s it! There is no answer to this argument except to cite the many cases that have gotten it wrong, starting with Gurung v. Malhotra.