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!
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.