Case of the Day: Genus Lifesciences v. Tapaysa Engineering
Posted on May 4, 2021
The case of the day is Genus Lifesciences Inc. v. Tapaysa Eng’g Works Pvt. Ltd. (E.D. Pa. 2021). Genus brought a commercial claim against Tapaysa, an Indian company. It sought to serve process via the Indian central authority but was unsuccessful. Or perhaps it would be better to say that it has been unsuccessful thus far: it made the request about eight months ago. It then sought leave to serve process via email.
The decision is interesting, though wrong, because it at least grapples with the more recent district court decision that correctly recognized that because the Service Convention is exclusive, and because no provision of the Convention expressly authorizes or permits service by email, the fact that no provision of the Convention expressly forbids service by email is irrelevant. Although the logic in those cases is sound and indeed unanswerable, the courts continue to get this wrong. In today’s case, the court reasoned as follows:
Moreover, the Court need not determine whether service by e-mail is generally inconsistent with the Service Convention because the Service Convention allows for alternative means of service when a Central Authority has not responded within six months. See Fed. R. Civ. P. 4(f), advisory comm. notes. Because that exception applies here, and because India’s objection to service under Article 10 did not object to service by e-mail, service by e-mail on Tapaysa is not inconsistent with the Service Convention.
I don’t really know what this means. The Convention does not allow for alternative means when the central authority does not respond within six months. The six-months rules in the Convention relate to default judgments, not to the methods of service the Convention allows. Note that the court also made the traditional error, holding that because India’s Article 10(a) objection does not mention email, service by email is permissible. The question the court fails to ask or answer is: which provision in the Convention authorizes or permits service by mail? The answer: none.