The case of the day is Anova Applied Electronics, Inc. v. Hong King Group, Ltd., 334 F.R.D. 465 (D. Mass. 2020). Anova, a kitchen appliance manufacturer, sued Hong King, a Chinese firm, and other Chinese companies for trademark and trade dress infringement. It sought leave to serve process by email under FRCP 4(f)(3).
I like the case especially because it is in my “home court,” which doesn’t get nearly as many Hague Service Convention cases as courts in, say, New York or California. Are Judge Saylor’s law clerks reading Letters Blogatory? You be the judge.
The judge noted that Anova had tried to serve process via the Chinese central authority but that service had not been completed after two years. So you might say this was a sympathetic case for ignoring the Convention. In fact, while it’s easy to find anecdotes about slow service in China, the statistics are not that bad. Here is an excerpt from my cert. petition in the Rockefeller case:
It is undoubtedly true that service of process via the Chinese central authority takes longer than service of process in US domestic litigation typically takes. But China is hardly unique. According to the latest data available from the Hague Conference on Private International Law, of the twenty states that provided information, the state with the highest percentage of service requests that took more than a year to execute was Ireland, followed distantly by China, Bulgaria, Canada, and Portugal. About forty-seven percent of the requests China executed were executed within four months, and about seventy-seven percent were executed within six months.
Anyway, even though the judge understood the plaintiff’s problems, he also understood that a treaty is a binding commitment of the United States. He correctly reasoned that in a country like China, that has objected to service by postal channels, service by email is impermissible whether or not email is deemed to be part of the postal channel. It is impermissible if email is postal, because of the objection. It is imperissible if email is not postal, because no other provision of the Convention even arguably permits it, and the Convention is exclusive.
I am a glass half full guy. It’s true that many cases get this wrong, but Anova is part of the new and growing trend of the cases to get it right. Way to go, Judge Saylor!