The case of the day is Nexon Korea Corp. v. Ironmace Co. Ltd. (W.D. Wash. 2023). Nexon sued Ironmace, a Korean company, alleging that it misappropriated trade secrets and infringed its copyright by developing a video game called “Dark and Darker.” Nexon also sued two of Ironmace’s employees, Ju-Hyun Choi and Terence Seungha Park. Nexon sought leave to serve process by alternate means under FRCP 4(f)(3), including email to Ironmace’s US lawyer and to the individual defendants’ email and social media accounts, arguing that Ironmace planned to release the game before Nexon could hope to effect service through the Hague Service Convention’s main channel of transmission.
According to the judge, Ninth Circuit precedent requires a showing of “facts and circumstances” that “necessitate the district court’s intervention” before allowing service by alternate means. The judge held that the circumstances of the case, namely, the threat that Nexon would be damaged by the imminent threat of the release of the game, justified a resort to FRCP 4(f)(3). She went on to find, correctly, that service on the US lawyer did not implicate the Service Convention, because no document would have be transmitted abroad for service.
The judge’s authorization of service on the individual defendants via their email and social media accounts was less well-founded. Indeed, the judge repeated the classic mistake: she reasoned that because Korea had objected to service by postal channels but not to service by email, the Convention did not bar service by email. As the best recent decisions show, such reasoning ignores the exclusive character of the Convention. Sure, nothing in the Convention’s text expressly forbids service by email, but what in the Convention permits it?
But on the bright side, the judge did find that service on the US lawyer for Ironmage was, by itself, sufficient to effect service on the individual defendants, because they were senior executives and were likely to be informed of the service when the lawyer received it. So we can regard the unfortunate conclusion about service by email on the executives as dicta unnecessary to the decision.
One other aspect of the case is worth noting: there are times when plaintiffs have a legitimate need for speed. Those US courts that do require some amount of justification for turning to FRCP 4(f)(3) before trying other methods should not impose too heavy a burden on plaintiffs, and a rule that plaintiffs must first try to serve process via the central authority would be poorly suited to cases where speed is important. But the best answer to such problems is really for foreign central authorities to do a better job of serving process faster. The pressures of litigation are what they are, and if central authorities don’t provide effective means for getting a case off the ground in a timely way, then US courts will face pressure to act, even when they are being asked to act in a way that is at odds with the Convention.