The case of the day is WSOU Investments LLC v. TP-Link Technologies Co. (W.D. Tex. 2021). WSOU sued TP-Link, a Chinese company whose offices are in Shenzhen, for patent infringement. It sought leave under FRCP 4(f)(3) to serve process by email to TP-Link’s former US counsel and by certified mail to TP-Link’s US subsidiary. The court granted the motion, and TP-Link moved to dismiss for insufficient service of process.
The court correctly held that the Convention was not implicated, because the method of service it had authorized did not require the transmission of documents abroad. But TP-Link raised another argument, which I’ve covered here before. FRCP 4(f)(3) is part of Rule 4(f), which applies when service “at a place not within any judicial district of the United States.” If you say that service by email on the US attorney is okay because it does not require transmission of the document abroad, how can you also say that the service can be authorized by FRCP 4(f)(3), which applies only to service “at a place not within any judicial district of the United States?”
It’s a puzzle. One answer is precedent: there are a lot of cases allowing service on a foreign defendant by serving the US counsel. That’s a fair answer, though not very satisfying. It’s the answer the court gave in today’s case. Another answer is to say that you can serve process abroad even if you don’t transmit a document abroad. This requires some fancy footwork: maybe you say that service of process takes place abroad if it has the effect of subjecting the foreign defendant to jurisdiction, even though you don’t transmit a document abroad for service (the language of Article 1 of the Convention) unless you actually send the document abroad. But the first part of this seems a little circular. I don’t know if there is another answer to the riddle.