The amicus brief of the day is the brief of friends-of-Letters-Blogatory Bill Dodge and Maggie Gardner in Kangol LLC v. Hangzhou Chuanyue Silk Import & Export Co. Ltd., a case pending in the Seventh Circuit. I had the pleasure and privilege of representing Bill and Maggie on this brief. Thanks, Bill and Maggie, for involving me in the project!

The brief addresses the perennial Letters Blogatory question: when the Service Convention applies, and when the state of destination has objected to service by postal channels, can you serve process by email? This question is a classic question that is capable of repetition but that evades review. Why? Because the question is often decided ex parte at the outset of cases that end in default judgments—so-called “Schedule A” cases that IP owners bring against large groups of alleged online infringers who often are located in China.

The district court granted a motion to serve process by email on Hangzhou Chuanyue Silk Import & Export Co., an alleged infringer in China, and it ultimately entered a default judgment. Hangzhou took the road less traveled and moved to set aside the judgment as void on the grounds that it had not been validly served with process. The district court denied the motion, and Hangzhou appealed. While in many similar cases the Service Convention doesn’t apply because the alleged infringer’s address is not known,¹See Convention art. 1. that’s not so here, so the case presents the question very clearly.

As you know, I’ve been writing about this question here for a long time and have tried to litigate it, without success for various reasons. (I don’t mean that I litigated it but lost, I mean that I have never been able to get a court decision). Bill and Maggie have also been thinking and writing about this for a long time. I commend to your attention their paper, E-Service Across Borders, 108 Judicature 44 (2024), as well as some other papers cited in the brief.

The first key to the brief is the assertion that the Hague Service Convention is exclusive. What does that mean? It means that when the Convention applies, the plaintiff must use one of the methods of service that the Convention authorizes, or at least permits, and must not use any other method of service. I am always careful to say “authorizes, or at least permits,” because I want to distinguish between Article 5, the main channel of transmission involving the central authority system, and Article 10, the alternate channels of transmission including transmission through the postal channel. But the case doesn’t involve that distinction, and so I am just being pedantic. Anyway, both the negotiating history of the Convention and the unanimous view of the state parties, including China and the United States, makes it very clear that the Convention is exclusive, or, in the wording of the US Supreme Court (which departs from the wording used internationally), “mandatory.”

The second key is the assertion that if service by email is permitted at all under the Convention, it is permitted because email is part of the postal channel mentioned in Article 10(a). The brief notes the views of the Special Commission, which has noted that “Article 10(a) includes transmission and service by e-mail, insofar as such method is provided by the law of the State of origin and permitted under the law of the State of destination,” and the views of the US executive branch, which is to the same effect. A point that is not really addressed in the brief but that is beyond any reasonable dispute is that Article 10(a) is the only provision of the Convention that even arguably permits service by email. Other provisions of the Convention allow countries to agree to additional methods of service, or allows for service according to methods of service provided for in the law of the state of destination, but no one argues or could argue that those provisions apply in cases where the US is the state of origin and China the state of destination.

The third and final key is the uncontroversial observation that China has objected to service under Article 10.

The conclusion that follows logically from these three points is simply: service of process by email is not permissible in China under the Convention when the Convention applies. Or as I once put it with my tongue firmly in my cheek:

The Hague Convention has a little list
Of service methods from which you must choose.
Email appears nowhere on the list,
So if you serve by email, you should lose.

Or even shorter:

Limited methods.
Email is not on the list.
The plaintiff’s sad tears.

After looking at the Convention, the amici look at Rule 4(f), which is applicable to service on a corporation abroad under Rule 4(h). First, Rule 4(f)(1) does not apply, because as we have just seen, the Convention does not permit service by email. Second, Rule 4(f)(2) does not apply, because the Convention is exclusive, which means it does not, in the rule’s parlance, “allow but not specify other means.” Third, Rule 4(f)(3) does not apply, again because the Convention is exclusive, which means that service by email, in the rule’s parlance, is “prohibited by international agreement.”

Q.E.D.

I hope this is finally the time for a US appellate case to decide this longstanding question. Kangol and Hangzhou Chuanyue, please do not settle this case!

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  See Convention art. 1.