Minyao Wang on Service By Email

I welcome readers back to Letters Blogatory with this guest post by friend of Letters Blogatory Minyao Wang. Minyao takes a look at the Grupo Cementos case, which the Supreme Court has decided not to review. His take on Rule 4(f)(3) is not in accord with mine, and I will address the disagreement in the comments, but it’s worth your attention. I thank Minyao for his patience–this guest post has been in the queue for a while while the website redesign progressed!

Minyao Wang

The issue of whether a U.S. court can order email service under the Hague Convention has been covered many times on this blog and is the subject of a split of authority at the district court level.  The U.S. Supreme Court recently denied a certiorari petition in Grupo Cementos de Chihuahua S.A.B. de C.V., v. Compañía de Inversiones Mercantiles, S.A., (Case No. 20-1033) which had teed up this question for resolution.

By way of background, cross-border service of process in civil cases is governed by the Hague Convention.  Each contracting state is required to designate a central authority to accept incoming requests for service.  The Hague Convention also provides other optional avenues of service, including service by regular mail.  However, signatories may opt out of a form of service other than the central authority process.  A few major economic partners of the United States, including Germany, Mexico, Japan, South Korea, China and India, have elected to opt out.  As a result, for a plaintiff suing a defendant located in any of those countries, the central authority route is mandatory.  The process can be unreliable, frustratingly bureaucratic, and often entails extensive delays.  

Federal Rule of Civil Procedure 4(f)(3) allows a district court to authorize “other means [of service] not prohibited by international agreement” on a foreign defendant.  Under the case-law of most judicial districts, a plaintiff must make a good-faith attempt to use the Hague Convention before moving for alternative service. 

The fact pattern in Grupo Cementos is a familiar one to practitioners who handle cross-border litigations.  Compafiía de Inversiones Mercantiles S.A. (“CIMSA”), a Bolivian company, commenced a case in the District of Colorado to enforce an arbitration award against Grupo Cementos de Chihuahua, S.A.B. de C.V., and GCC Latinoamerica, S.A. de C.V. (collectively “GCC”), two affiliated companies located in Mexico.  Over the course of two years, CIMSA made two failed attempts to perfect service through the Mexican central authority.  According to the Mexican government, it could not locate the recipients of the summons, even though DHL was able to make a delivery at the address supplied by CIMSA to the Mexican authorities.  The district court therefore granted CIMSA’s Rule 4(f)(3) motion to serve GCC through their U.S. counsel.  The Tenth Circuit affirmed in what appears to be the first-ever federal appellate decision addressing the issue of email service on foreign defendants.

GCC acknowledged (as it must) in its briefing that according to the majority rule at the district court level email service is permissible.  It nevertheless contended that the minority view to the contrary was the correct one.  It relied principally on the Court’s holding in Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 706 (1988) that the Hague Convention is the “exclusive” method of service which “preempts inconsistent methods of service prescribed by state law.”  Recall that Rule 4(f)(3) on its face permits a court to fashion a service method “not prohibited by international agreement.”  In effect, GCC took the position that an alternative service method would be prohibited unless it was expressly authorized in the Hague Convention (the host of this blog agrees with this position).  In my view, this position is not tenable because it would render Rule 4(f)(3) a nullity.  I read Rule 4(f)(3) as a safety valve provision that ordinarily comes into play only in cases where the Hague Convention has failed to work. The Hague Convention and Rule 4(f)(3) should work seamlessly together.  An alternative method of service that is not expressly prohibited by the Hague Convention can be authorized by Rule 4(f)(3).  If the alternative method of services were limited only to the methods expressly specified in the Convention, then Rule 4(f)(3) could never be used to effectuate service of process in circumstances where it was most needed.

There was a better basis to reject the use of email service in the Grupo Cementos case.  Article 10(a) of the Hague Convention gives the contracting states the ability to affirmatively object to service by regular mail.  Mexico has done so here.  Email, which did not exist when the Hague Convention was adopted in 1965, has largely displaced regular mail as a routine means of written communications.  It is simply not conceivable to me that a state which made a deliberate choice as a sovereign reject service by mail would have agreed to permit foreign parties to serve its nationals using electronic mail.  On the flip side, this means that email service should be permissible for countries that have not objected to Article 10(a).  

A wrinkle in the Grupo Cementos case is the email service was done not on foreign-based defendants themselves, but on defendant’s counsel based in the United States.  In my view, this was not a Hague Convention or Rule 4(f)(3) issue because service took place on U.S. soil and did not involve the transmission of documents to a foreign country.  Whether such service is authorized by other provisions of Rule 4 is the subject of yet another district court split.  It is worthy of a separate blog post!       

It was not surprising that the Supreme Court did not agree to review the case.  The Court is generally not in the business of resolving district court disagreements.  Unless and until there is a circuit court split, the issue will likely remain outstanding.                 

6 responses to “Minyao Wang on Service By Email”

  1. Thanks for this post, Minyao! As we’ve discussed, I think your reading of Rule 4(f)(3) is incorrect. There are cases that make it clear that the Rule is not meant as a “last resort,” and there is no requirement of first resort to the Convention, although some courts in their discretion do require plaintiffs to try the Convention first. But more fundamentally, your view that “an alternative method of service that is not expressly prohibited by the Hague Convention can be authorized by Rule 4(f)(3)” is backwards. The Convention is exclusive (that’s the holding of Volkswagen). In other words, when it applies, you have to use one of the methods it authorizes or at least permits. That view is more or less universal and is reflected not just in US law but in the conclusions and recommendations of the Special Commission of The Hague Conference and in the Practical Handbook. But if it is any comfort, many more US judges seem to agree with you than with me!

  2. Minyao or Ted, could countries that object to service by email amend their declarations with respect to Article 10(a) to include an objection to email specifically? If so, this would seem to be an easy solution. And further, if this is so, countries that have not expressly objected to service by email might reasonably be considered not to have objected under Article 10(a).

    1. Ted Folkman

      Bill, that is an interesting practical suggestion. But it does buy into the erroneous premise that anything that is not forbidden under the Convention is permitted, when in fact the opposite is true: anything that is not permitted is forbidden. (At least that is what I understand Volkswagen to mean, and it’s the view of the Special Commission). To me, the first step is to ask: is email within the definition of “postal channels?” There are arguments on both sides of this question. On the one hand, if you look at the Universal Postal Convention (Art. 37), it seems clear that private, commercial email as we know it is not the kind of electronic postal service that likely would be considered as postal. On the other hand, the Special Commission’s 1964 report suggests that telegraph transmission is within the postal channel. If email is not within the postal channel, then that’s the end of the question. If it is postal, then I think the next step is to look at the wording of the declarations that already exist. If a state has objected to all service under Article 10(a), then it is (to me, but not to many US judges!) difficult to see why it should be necessary to state that the objection extends also to email. After all, the question only arises if we have already decided that email is within the postal channel.

      I also think that in practice it would be many years before one could expect many states to revise their declarations.

      Some of these issues were discussed at the 2019 HCCH a|Bridged event: the papers are available here.

  3. kotodama

    Fascinating post! I come to this with no particular expertise, but I tend to side with attorney Folkman. The way I look at it, you could have three different categories of service methods: (1) authorized by int’l agreement (e.g., Hague), (2) prohibited by int’l agreement, and (3) not authorized, by also not prohibited by int’l agreement. In that framework, Rule 4(f)(3) would still serve a purpose in enabling the use of methods falling in the last category. Maybe in practice the last category is minuscule or nonexistent, I have no idea. But in theory at least it seems to give the Rule a role to play that’s consistent with its text and structure. And it avoids what I agree seems to be the bigger “nullification” problem of undermining the Convention’s basic functionality.

    On the alternate basis in the second-to-last paragraph, I further agree it would seem to moot the whole issue anyway.

    And finally, I agree the fact of service on U.S. counsel adds an intriguing wrinkle and I look forward to any later post exploring that angle.

    (Forgive me for one very pedantic aside, but in the second-to-last paragraph, wouldn’t it be slightly more accurate to say “On the flip side, this means that email service should be permissible for countries that have not *availed themselves of Article 10(a)’s objection procedure*.”? The post is otherwise generally written quite nicely and easy to follow—especially for a nonexpert like me. Well done!)

  4. kotodama

    In light of Ted’s reply to Bill, I think my framework proposed initially doesn’t work. That’s just my lack of expertise showing! But I still don’t believe the Rule can override the Convention like that.

    1. Ted Folkman

      Well, not everyone agrees with me!

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