The case of the day is Sinox Co. v. Yifeng Manufacturing Co. (W.D. Tex. 2022). In light of my recent post on service by electronic means at the Transnational Litigation Blog, which dealt with prospects for addressing the tension between the Service Convention and current practice in the US courts, I thought I would use today’s case as a vehicle to summarize my thoughts about service by email generally.
Today’s case is pretty typical. Sinox sued two Chinese companies, Yifeng and Shenzhen Yuandaoyuan Industrial Co., for patent infringement. It made several efforts, all facially improper, to serve process. Its effort to serve by email without leave of court was obviously improper, because if email service abroad is allowed at all, it is only allowed with leave of court, see FRCP 4(f)(3). Service by mail was obviously improper, because China has objected to service by postal channels under Article 10(a) of the Service Convention. Service by mail, with the mail sent by a Chinese law firm, was obviously improper, because China has objected to all alternate methods of service under Article 10 of the Convention, including service “directly through the judicial officers, officials or other competent persons of the State of destination,” art. 10(c). Apparently after trying and failing at these methods, in January 2022, Sinox hired a “Hague service vendor” (shudder) and transmitted the papers to the Chinese central authority. Just a couple of months later, before Sinox could reasonably have expected the central authority to have served the documents, Sinox moved for leave to serve by email. (The most recently available statistics from the Hague Conference show that China executed requests for service within four months in about half of cases, and within six months in about three-quarters of cases).
The court allowed the motion, holding that China’s objection to service by postal channels did not imply an objection to service by email and noting that Sinox’s motion was reasonable in light of its several failed attempts at service.
How should we think about this decision, and service by email more generally?
- It was certainly within the court’s discretion to say that difficulties in effecting service can justify a motion for service by alternate means. I’ll go further and say that in general, courts are free to authorize service by alternate means even if the plaintiff has not made any other attempts at service. However, on the facts of this case, it seems relevant to me that none of the preceding attempts were even arguably proper, with the exception of the request for service sent to the central authority; and it was too soon to say that that effort had failed.
- The court was clearly wrong to say that China’s objection to service by postal channels does not imply an objection to service by email. Now, lots of courts have issued similar decisions, so why do I make this statement so confidently? It’s simple and inexorable logic. Here’s how it goes. Premise 1. The Convention is exclusive. If it applies, a plaintiff must use a method that it authorizes or at least permits, and the plaintiff may only use a method that it authorizes or at least permits. This is not controversial and is the holding of Volkswagen v. Schlunk, the Supreme Court’s leading case on the Convention. Premise 2. The Convention authorizes one method of service, service via the central authority, and it permits several methods of service, which are set out in Article 10. (There are also several “derogatory channels” for service, e.g., by bilateral agreement between states, under a law of the state of destination that expressly permits another method of service coming from abroad, etc., none of which could possibly apply here). Premise 3. Of these, the only method of service that even arguably permits a US lawyer to serve a defendant abroad by email is Article 10(a), which allows for service by postal channels, provided the foreign state does not object. Premise 4. China has objected to service by postal channels. Conclusion. It follows that service by email is impermissible in any case in which a state has objected to service under Article 10(a). It makes no sense to say that an objection to service by postal channels does not imply an object to service by email, because service by email is only permissible if it is service by postal channels.
If I may reprint my attempt to put the point into verse:
Limited methods. Email is not on the list. The plaintiff’s sad tears.
Back to my bullet-point list.
- This does not mean that service by email is never proper under the Convention. Not every state has objected to service under Article 10(a). In those states that have not made an objection, there is room to argue that email should be considered to be within the postal channel, on the same kind of functional basis that led the Special Commission of the Hague Conference on Private International Law to conclude, for example, that private couriers, telegram and telex, etc., are within the postal channel. There is more work to be done on this score—I’ve given some thoughts in my new post at TLB. But it’s important to understand that this approach really can only apply in states that have not made Article 10(a) objections.
- Finally, I want to emphasize a practical point. In many cases including some patent cases (I don’t know about today’s case), the plaintiff does not contemplate a need for enforcement of the judgment abroad. In such cases, what really matters is what the US courts will accept. And if the US court will accept service by email and, for example, a plaintiff can obtain an injunction that prevents the defendant from infringing in the United States, then there’s no reason for the plaintiff to be worried about the niceties of the Convention. Still, even in a default judgment case (many of these cases turn out to be default judgment cases), the plaintiff should be concerned about a post-judgment motion to set aside he judgment as void, on grounds of insufficient service of process. That was what happened, for example, in the Changzhou SinoType case. (You might take the view that SinoType shows there is not much for plaintiffs to worry about, since despite what I thought was a pretty strong argument and even a good cert. petition, SinoType’s post-judgment challenge was unsuccessful!) But in other cases, where the plaintiff does contemplate enforcement abroad, you really have to consider how the method of service will affect the prospects for recognition.
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