The case of the day is Densys Ltd. v. 3Shape Trios A/S (W.D. Tex. 2020). Densys was an Israeli company. It sued 3Share, a Danish company, for patent infringement. Densys served process by having the clerk send the documents to 3Share in Denmark by Fedex. 3Share moved to dismiss.
Denmark has not objected to service by mail under Article 10(a), and Densys did the service by mail by the book by having the clerk send it, as FRCP 4(f)(2)(C)(ii) requires. So what’s the problem? 3Share raised a textual problem that I’ve noted before. Rule 4(f)(2) applies only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means.” But there is an internationally agreed means for service in Denmark, namely, service via the central authority mechanism. And the Service Convention allows other methods, but only methods that it does specify.
The short answer is precedent: it’s very clear from the precedents that you can serve by mail under the Convention, as long as there is no Article 10(a) declaration, and surely that was the intent of the drafters. The longer answer is that the rule could be drafted better to make this clear. In light of the distinction the Water Splash Court draws between methods that the Convention authorizes and methods that it merely permits, I think FRCP 4(f)(2) could be improved if it provided that it would apply “if there is no internationally agreed means, or if an international agreement permits but does not itself authorize other means.
Readers, what do you think? I am considering making this proposal formally, and I may tinker with the language, but I would be grateful for the thoughts of informed readers on this!