The case of the day is Facebook Inc. v. 9 Xiu Network Shenzhen Tech. Co. (N.D. Cal. 2021). Facebook sued Wei Gao, Zhaochun Liu, and 9 Xiu Network (Shenzhen) Technology Co., alleging they were selling fake Facebook accounts online. Facebook engaged in a “multiyear effort to serve the defendants.” The court held that the defendants had been properly served, and for present purposes let’s just assume that that’s so. Wei Gao and Zhaochun Liu were served by a method authorized by the Convention; 9 Xiu was served by email with leave of court.

Facebook sought entry of default judgment, and the magistrate judge obliged by recommending that the judge grant the motion. The court ordered that a copy of the report and recommendation be served on 9 Xiu, presumably by email, but the magistrate judge said that service on  Wei Gao and Zhaochun Liu was unnecessary because “further service isn’t required under Article 15 of the Hague Service Convention.”

What was the court getting at here? Article 15 has to do with the rules for entry of default judgment Basically, it forbids entry of a default judgment unless the “writ of summons or an equivalent document” has been served (or, in states that opt in, that the summons was transmitted by a method prescribed by the Convention and six months have passed without a response). It doesn’t say anything about service of other judicial documents. So I’m not sure what the court thought it was doing.

Although the decision is confused, it points to a real problem in cases where the defendant does not appear. Certain judicial documents after the summons do need to be served. This raises the question whether they need to be served in accordance with the Convention. If so, that’s bad news for plaintiffs.

In the case of injunctions, we can avoid the problem by observing that what matters is whether a party bound by an injunction has notice of the injunction, not whether it has been served on him. But in other cases, one way to think about this is to distinguish “service” in the sense of FRCP 4 from “service” in the sense of FRCP 5. Dicta in Volkswagen suggest that the Convention applies only to the former. Even though we use the same word, “service,” to describe the two kinds of delivery, in one case, the word has an almost mystical aspect, while in the other case, it is really just a synonym for “sending” or “delivery.”

We have to be careful, though, because the Convention makes it clear that it applies not just to summonses, but to any “judicial documents” and even “extrajudicial documents” that need to be transmitted abroad for service. What kinds of judicial documents, other than a summons, have to be served in the mystical sense? From an American perspective, I suppose subpoenas, but I can’t really think of any others. If we read the Convention to apply only to service of summonses, don’t we risk failing to appreciate the breadth of the Convention’s reach?