The case of the day is Zobay v. MTN Group Ltd. (E.D.N.Y. 2024). The claim is that the defendants, including ZTE and Huawei, conspired with foreign terrorist organizations “targeting Americans in Iraq, Afghanistan, the Middle East, and Europe.” The plaintiffs brought claims under the Anti-Terrorism Act on behalf of people “killed or wounded while serving [the United States] in Iraq between 2011 and 2017 or in Afghanistan in 2019.” ZTE and Huawei are both Chinese companies. The plaintiffs first tried to serve process via the main channel under the Service Convention by sending a request for service to the Chinese central authority. But after a long silence, the central authority finally informed the plaintiffs that it would not serve the documents on the grounds that service of the documents would infringe on China’s sovereignty or security. The plaintiffs therefore asked the court to authorize service on the defendants’ US counsel under FRCP 4(f)(3).

There are lots of cases authorizing service of process by service on the foreign defendant’s US lawyer. But there is a puzzle in the rule that very few cases grapple with:

FRCP 4(f)(3) is part of Rule 4(f), which applies when service “at a place not within any judicial district of the United States.” If you say that service by email on the US attorney for the foreign defendant is okay because it does not require transmission of the document abroad, how can you also say that the service can be authorized by FRCP 4(f)(3), which applies only to service “at a place not within any judicial district of the United States?”

Well, to her credit, Magistrate Judge Vera M. Scanlon went there. She cites several recent cases rejecting service on the grounds that the service on a US lawyer is not service “at a place not within any judicial district,” as the rule requires. But she notes recent cases taking the other view. The rationale of those recent decisions applies only ‘where U.S. counsel is a conduit to the service that is effectuated at a place not within any jurisdiction of the United States.” The judge agreed with the latter view and authorized the service.

I think the outcome is the right outcome, but mostly because “the life of the law has not been logic: it has been experience.” I don’t think there is a great doctrinal reason why the service should be permitted, but there are a lot of cases approving it over many years, and there is a need for a method of service that really does provide notice to defendants when other, more traditional means of service don’t work.

The judge addressed another favorite Letters Blogatory issue. In a pure dictum, the judge asked about whether she could authorize service of process on the defendants in China. She observed that recent cases have split on the issue, but she punted on it, pointing out that the plaintiff hadn’t provided email addresses for the defendants.