The case of the day is LS Energia Inc. v. Electrica Nacional S.A. (S. D. Fla. 2023). LS Energia, a Florida company, and its Panamanian affiliate brought an action against Venezuela and its state-owned oil and electric companies. The plaintiffs had begun by seeking to serve all three defendants by diplomatic channels under 28 U.S.C. § 1608(a)(4). The plaintiffs moved for leave to serve process on all three defendants by mail, arguing that because Venezuela had objected to service by postal channels under Article 10 of the Service Convention, service under 28 U.S.C. § 1608(a)(3), or for that matter, 28 U.S.C. § 1608(b)(3), was unavailable. The court granted the motion, but after much time had passed, service by diplomatic channels apparently had not been effected. The plaintiffs then asked the court to authorize service by mail under 28 U.S.C. § 1608(a)(3) and 28 U.S.C. § 1608(b)(3).

The court made a point about “going out of order.” The plaintiffs should not have tried service by diplomatic channels first and service by mail next. (And, of course, the plaintiff should not have tried service by diplomatic channels at all with respect to the state-owned companies, since service by diplomatic channels is found only in § 1608(a), the part of the statute governing service on states, not in § 1608(b), the part of the statute governing service on agencies and instrumentalities of states). But fortunately, the court did not rest on that point, and it would seem erroneous to say that a slip-up in the order of methods of service should doom a case.

Instead, the court focused on Venezuela’s objection to service by postal channels and held, correctly, that when a state has objected to postal service under Article 10(a) of the Service Convention, then service by mail under § 1608(a)(3) is simply unavailable.

Does this mean that it may be difficult or impossible in practice to serve process on Venezuela? Maybe. It does seem that since the United States has diplomatic relations with Venezuela (though it has no functioning embassy there), it should be possible to serve process by diplomatic channels, even if it takes a long time.