Improving Rule 4(f)(2)
Posted on September 17, 2020
I’ve occasionally remarked about an odd feature of FRCP 4(f)(2). Rule 4(f)(1) authorizes methods of service that an international convention authorizes (e.g., the central authority mechanism in the Hague Service Convention or the Additional Protocol to the Inter-American Convention). Rule 4(f)(2) authorizes certain other methods of service, but only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means.” This works great for the Inter-American Convention, because that Convention is non-exclusive. It doesn’t exhaustively list every available method of service, but that’s okay, because it doesn’t forbid any methods of service. In other words, it “allows but does not specify” other methods. But the rule doesn’t fit the Hague Service Convention, which is exclusive. If a method of service isn’t authorized or at least permitted by the Convention, you can’t use it, period. At least that’s how I understand the Schlunk case.
So what to do about alternate methods of service such as service by post? As we know from Water Splash, the Convention doesn’t affirmatively authorize them, so FRCP 4(f)(1) doesn’t apply. It allows them, but it also specifies them, so FRCP 4(f)(2) also seems on its face not to apply, although the courts have mostly ignored the plain language of the rule.
A while back I wrote that I was considering proposing an amendment. Well, here it is. I have proposed to delete the word “specify” in FRCP 4(f)(2) and substitute “itself authorize,” so that the rule would read:
(2) if there is no internationally agreed means, or if an international agreement allows but does not itself authorize other means, by a method that is reasonably calculated to give notice:
This doesn’t solve every problem with the wording of Rule 4(f), but I believe it addresses the problem of fitting Article 10 of the Convention into the structure of the rule. I would like to acknowledge helpful comments from David Stewart and Bill Dodge, which improved my proposal.
By a coincidence of timing, Danilo Ruggero Di Bella has been thinking similar thoughts, and published a similar proposal at Conflict of Laws. Danilo’s proposal modifies FRCP 4(f)(1) instead of 4(f)(2) by using “allowed” in place of “authorized” in FRCP 4(f)(1). I think that his proposal solves the problem, too, but maybe at the cost removing from Rule 4 the distinction, discussed in Water Splash, between methods of service the Convention authorizes and those it merely permits. I think it is an aid to clarity to track that distinction in FRCP 4(f)(1) and (2).