Case of the Day: Kyjen Co. v. Individuals

The case of the day is Kyjen Co. v. Individuals (S.D.N.Y. 2023). The case was a pretty typical “Chinese knockoffs sold on the internet” case. The plaintiff sought a temporary restraining order and moved for leave to serve process by email and “online publication.” The plaintiff didn’t know the defendants’ addresses, but the judge took the view that for purposes of the Hague Service Convention, an address is unknown only if the plaintiff has made a diligent effort to find it, which hadn’t happened yet. So the Convention applies to the case, at least for now.

I’ve often complained about courts approving service by email in China in cases where the Convention applies. This judge didn’t make that mistake. She correctly reasoned that service by email is forbidden because China has objected to service by alternate methods. Nice job.

But the judge may have gone too far when she applied similar reasoning to service by “online publication”:

As for service by online publication, the Hague Convention is silent. Omission of a particular method of service from the Convention cannot be read to implicitly authorize that method. Cf. id. at *8 (“In other words, Articles 11 and 19 provide ready tools to permit countries to expressly permit service by email. And those articles would be largely superfluous if litigants could serve a party in another country merely by selecting a method that is not expressly listed in the Hague Convention—there would be no need for articles that permit countries to agree to other methods of service, or to legislate to affirmatively authorize other methods of services.”). Thus, service via email and online publication is “prohibited by international agreement [and] is impermissible under Rule 4(f)(3).”

I think what’s missing from this analysis is an appreciation of the limited scope of the Convention. It only applies when there is occasion to transmit a judicial document abroad for service. That’s why the Convention does not prohibit the use of classic fictitious service techniques like notification au parquet.

Suppose the service by publication was to involve a legal notice in a New York newspaper. That would, I think, pose no issues under the Convention, because it would not involve transmission of the documents abroad for service. It might pose due process issues, of course. Suppose the service by publication was to involve a legal notice in a Chinese newspaper? I am not certain, but I think my view is that there would still be no issue under the Convention, because while the documents would have to be sent to the Chinese publisher, they would not be sent for service. The whole point of these kinds of notices is that they are a substitute for service in cases where service is impossible. I don’t see that adding a dash of internet to the recipe makes any difference, either.

This issue really only arises because the judge took the view that the defendants’ addresses were not (yet) unknown. Usually we say that service by publication is proper under the Convention because when the defendant’s address is unknown, the Convention doesn’t apply. That’s the view, for example, in Paragraphs 95 and 96 of the Practical Handbook on the Operation of the Service Convention, which summarizes US practice. I think that the judge would have done better to say that service by publication is premature because the plaintiff had not yet made sufficient efforts to locate the defendants. That’s a point that has nothing to do with the Convention.

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