The case of the day is Facebook, Inc. v. 9 Xiu Network (Shenzhen) Technology Co., Ltd. (N.D. Cal. 2019). The image I’ve chosen to go with the post is the virtual bouquet I am sending to Magistrate Judge Alex G. Tse, who joins the small number of judges across the country who have begun to get the question of service by email right in cases where the Hague Service Convention applies and where the state of destination has objected to service by postal channels.
Facebook sought leave under FRCP 4(f)(3) to serve process on a Chinese defendant by email. Routine by now, right? I mean, there are a lot of cases that say, “sure, whatever.” A motion like this is brought ex parte, and so a judge really has to go the extra mile not just to say “yes,” when there is a lot of precedent supporting the motion. But Judge Tse had his running shoes on. Here were his main points:
- “The Court may authorize service by e-mail only if service by that means is not prohibited by international agreement.” Correct. That’s what FRCP 4(f)(3) says.
- “Unless an exception applies, the Convention-delineated methods of service … are exclusive.” Correct. That’s the holding of Volkswagenwerk AG v. Schlunk, reaffirmed in Water Splash v. Menon.
- Even if email “could conceivably come within an expansive reading of service ‘by postal channels” … China has affirmatively objected to service by postal channels, so that reading, even if accepted, wouldn’t support service by e-mail on defendants in China.” Correct.
- Courts that point out that China’s article 10 objection doesn’t explicitly name email need to go back and ponder point #2. Correct.
There have been a few cases recently that have gotten this right and have started to correct the damage wrought by Gurung v. Malhotra. But this is the clearest and best-reasoned one yet. Huzzah to him and his law clerks!